Mobbing and the principle of equal treatment in employment – a comparison
The obligations to counteract mobbing and provide equal treatment in employment, including the prohibition against discrimination, are among an employer’s basic obligations under the Labour Code. Unequal treatment in employment and mobbing are two of the most important and widely commented issues of labour law, yet the two terms are still sometimes confused, as shown in accusations by employees that they have experienced, e.g. mobbing, when the behaviour concerned actually constituted harassment (a form of discrimination).
It is crucial, then, to distinguish between ‘mobbing’ and ‘unequal treatment in employment’.
‘Mobbing’ is an autonomous concept that applies solely to behaviour defined in the Labour Code. Accordingly, mobbing is a violation that occurs over time, whose purpose is to harass or intimidate an employee, to achieve a decreased evaluation of their professional capabilities, or which is aimed at humiliating or ridiculing an employee, isolating them or eliminating them from a work team (Art. 94(3) § 2 of the Labour Code).
Mobbing does not constitute a breach of the principle of equal treatment. Unequal treatment in employment may be incidental or one-off in nature, without the intent of causing negative emotional states or feelings on the employee’s side. Unlike mobbing, equal treatment in employment is a collective category that includes a number of different violations. The basic provision regulating the principle of equal treatment is Article 11 (2) of the Labour Code, while its further specification, including of violations of equal treatment, are set out in Chapter IIa of the Labour Code.
Remote work – a remedy for mobbing and discrimination?
According to Art. 3 of the Act of 2 March 2020 [on special solutions related to the prevention, counteract and combating of Covid-19, other infectious diseases and emergencies caused by them] an employer may order employees to perform work remotely. Such work organisation is also recommended by the sanitary services, including the Chief Sanitary Inspectorate. At the beginning of the pandemic, many employers took advantage of this opportunity. After the first ‘wave’ of returns to offices in the summer months, we are now seeing more people again working from home. It might seem that the lack of physical contact between employees, or the significant limitation of their personal contacts, would automatically lead to an almost complete elimination of the phenomena of mobbing or discrimination. But this is not a safe assumption. During telecommuting, employees remain in contact, though this may not be physical. They talk on the phone, participate in videoconferences, exchange e-mails and use communication apps. Any of these tools can be used for mobbing – and they are difficult to supervise.
Although an employer does have the ability to monitor the software their employees use at work, in practice exercising this right can be complicated. Remote work greatly reduces the employer's ability to keep an eye on employees to get a sense of the atmosphere among colleagues, or even to hear what’s going on ‘by the water cooler’. For employers, these soft aspects of being in a shared office space often provide the first symptoms of disturbing behaviour among employees, which could be signs of mobbing or harassment, including sexual harassment. For these reasons, during remote work, it is particularly important to educate and sensitise managers or direct supervisors to undesirable behaviour among employees, and to develop methods of quick response.
Examples of discrimination and harassment during the pandemic
When identifying new areas or challenges related to the prevention of mobbing and the prohibition of discrimination, it is impossible not to start with one of the main issues related to the pandemic – infection among employees. An employee's health status may lead to discrimination. And certain activities that could potentially increase the safety or well-being of other employees, such as extending the ban on admitting such an employee to the office even after the end of their period of isolation, or sending them to work in a separate room and limiting their contacts with other employees, could in the long term be classified as mobbing in the form of excluding them from the group of their co-workers. The employer has a duty to ensure that work is organised so that a person who has been infected and returns to work is not stigmatised as a result of having been ill.
Another example of potential discrimination or (under certain circumstances) mobbing could be assigning only one employee to work in the office despite their objecting to this, in a situation where other employees can work from home at that time. The employer could justify such a decision on the basis of the employee’s age or the fact that they live in a single-person household. A similar problem may arise in terms of workload, e.g. single people who do not have a family may be assigned more tasks to perform during remote work than people who must combine remote work with family responsibilities. This can result in single people constantly working overtime. In both the above situations, the employer may have good intentions, or be engaging in positive discrimination, but privileging one group over another requires an objective justification always determined by the facts of a given case.
The challenges to counteracting mobbing and discrimination are obviously not only related to the organisation of work. They may involve a blurring of the boundaries of an employee's privacy, or the separation of private time from working time, a common complaint. This kind of behaviour may include continuously sending e-mails and text messages or calling an employee after the end of their working time or, in extreme cases, requiring that the employee immediately answer their supervisor regardless of the time of day. Communication in the company can also be abused by intruding on privacy, such as asking if someone is working in their pyjamas or from bed, etc. Constant interference in an employee’s domestic life may be classified as sexual harassment.
The widespread use of remote work during the pandemic has not automatically reduced the need to counteract mobbing and unequal treatment in the workplace. These obligations are still in force, while the changing circumstances require employers to ‘take a fresh look’ at this issue. The absence of or limited physical contact among employees has caused a shift in the forms mobbing and discrimination can take, and has created new spaces for their expression. For this reason, employers should familiarise themselves with these new or previously marginal forms of discrimination and mobbing.