1. Anti-mobbing regulations – Are they necessary?

Polish employers are increasingly facing legal actions for mobbing, brought by cur-rent or former employees seeking high damages for mobbing experienced at work. In many cases, employers are helpless as they often learn from a statement of claim that certain acts of mobbing occurred.

It is worth remembering that “mobbing” is conduct consisting of the persistent and long-lasting bullying or threatening of an employee by their manager or colleagues and that is aimed at lowering the employee’s trust in their own professional compe-tence, and degrading and humiliating before or eliminating them from a group of co-workers. In each case, the liability rests with the employer.

In order to be safeguarded against the negative effects of mobbing, an employer has an obligation to introduce an anti-mobbing procedure. The Labour Code does not specify the details of this procedure; however, practice and judicial decisions in-dicate the following action: introducing the rules of conduct in the event of mobbing, holding regular trainings, inserting respective clauses to the work rules, and carry-ing out periodical surveys among employees to assess effectiveness of anti-mobbing policy introduced by an employer.

Poland’s Supreme Court rendered a decision on 3.08.2011 (case file no. I PK 35/11) in which it emphasised that preventing bullying at the workplace is an obligation to exercise due diligence. This decision is of significance for employers, as it means that if an employer proves that it undertook real action against bullying (rules, trainings), it may be absolved from liability.

If an employer ignores the obligation to introduce a relevant anti-bullying proce-dure, then it will be liable even for tolerating negative conduct by its workers or management. It does not matter if the employer knew about the bullying if the em-ployee proves that that bullying caused their contract of employment to be termi-nated or led them to suffer mental distress. In such cases, employees may seek both damages and redress with no statutory limitation.

  1. Company Social Benefit Fund – Do we have to create it?

An obligation to create the Company Social Benefit Fund (“Fund”) was imposed on those employers with at least 20 full-time equivalent staff as of 1 January of a given year. If there are fewer employees, the creation of the Fund is voluntary.

Generally, each employer may opt out of creating the Fund. However, formal re-quirements and a date on which they may resign are conditional upon the internal rules applicable at the company and the number of employees.

An employer employing more than 20 employees may opt out of creating the Fund at any time; however, this step must be taken in compliance with certain proce-dures and may not be a unilateral decision.

This means those employers that are covered by a collective bargaining agreement are obliged to obtain the consent of relevant trade union(s) and to insert a relevant clause in the collective bargaining agreement, which is then filed with a relevant re-gistry. In addition those employers who introduced pay rules are obliged to agree with the representative(s) of employees upon, and then announce, the change in a customary manner. The change will enter into force two weeks after informing em-ployees about it.

The absence of consent from trade union(s) or an employee representative(s) makes it impossible for the employer to opt out of creating the Fund.

When opt out of creating the Fund, the employer has to take into account that as-sets kept in the Fund’s account must be used solely for social security related activi-ties; the employer may not transfer them to another account held by the company.

Another possibility of reducing costs is to decrease allocation for the Fund. Such al-location may be reduced below a statutory amount, even to a very small amount, as the statute does not stipulate a bottom limit. The procedure is similar to the one when the employer opt out of creating the Fund.

An employer who infringes the rules for creating the Fund, for ensuring the timely payment of allowances for the Fund, for informing employees or undertaking the consultation procedure with representatives of employees faces a fine. Moreover, trade unions may raise a claim before the labour court for allowances to be paid for the Fund.

  1. Monitoring of electronic mail and the Internet during work – What regulations to introduce so as not to breach law?

Neither the provisions of Polish law nor judicial decisions define how employees should use electronic mail or the Internet during work. An employer is therefore ob-liged to create internal procedures to determine how employees may use the com-pany’s email and Internet services and how this usage may be controlled.

When preparing rules or other related regulations, an employer has to consider the Law on Personal Data Protection and commonly binding laws on personal rights pro-tection.

There is a prevailing assumption that an employer may check an employee’s busi-ness emails, as well as read their business correspondence. This opinion was ex-pressed by the Labour Law Department of the Ministry of Labour and Social Policy in a letter dated 1 August 2007 (DPR I-0712-6/JS/MF/07), which was confirmed by the stance of the Minister of Labour and Social Policy on 24 January 2008 (DPR-I-0712-6/JS/MF/07). The Ministry held that such entitlement of the employer resulted di-rectly from an obligation to “organize work ensuring full use of working time”, which is governed in Art. 94 section 2 of the Labour Code, and that an employee who us-ing business email for personal purposes was breaching an obligation to work dili-gently and scrupulously. According to the Ministry, an employer should check whether emails do not refer to an employee’s private matters, as the employer is prohibited from viewing such emails even if they have been sent from the em-ployee’s business account.

Not only because of protection of an employee’s personal rights, but also because of provisions of the Criminal Code that protect the secrecy of correspondence, an em-ployer has to make sure whether an employee’s correspondence is of a business or private nature.

This position was also confirmed by the European Court of Human Rights in Stras-bourg in the case of Lynette Copland v. the United Kingdom (application no. 62617/00), which held that employees at their workplace should have a right to pri-vacy. The Court also indicated that admissible controlling acts by employers should be described in their internal regulations, and they should be applied adequately to business goals the employer wants to achieve.

Another problem which employers may face is the fact that employees may during their working time search various Internet sites that are not related to their work.

This issue was also analyzed in the above-mentioned decision of the European Court of Human Rights regarding Copland, where the Court scrutinized monitoring by em-ployer of employee Internet usage, i.e. checking Internet sites which employees vi-sited, and the dates and times of such visits. The Court ruled that failing to inform employees about monitoring their activity on the Internet, such as searching Inter-net websites, infringes employees’ rights to have their privacy respected.

If rules for control of computer equipment are clearly determined, and employees are aware of them, an employer may install software to determine what software applications and Internet websites an employee uses and what part of his/her work-ing time is used for surfing on the Internet for purposes not related to work. Thus, the General Inspector for Personal Data Protection confirmed that an employer might ban employees from using communicators and social networks. If an employ-er has not introduced the respective regulations, it will be difficult for it to control employees without breaching their right to privacy.

Due to the lack of adequate regulations and in order to avoid doubts and disputes, employers should introduce rules and define principles for using the Internet and email and the control of such usage – and they should do so prior to applying cer-tain controlling methods at the workplace. Such rules should indicate who on behalf of an employer may control employees and to what extent the data thus gathered may be used. An employee is obliged to read the applicable rules and acknowledge them in writing.