Changes on the horizon regarding posting of employees and mobbing

Changes concerning posting of employees
New definition of 'mobbing'?

For the past few months, legislative work has primarily focused on COVID-19. However, the anti-crisis shield is not the only issue that employers should pay attention to in the near future (for further details please see "Anti-crisis shield updates"). On the horizon there are changes concerning the posting of employees and potential changes with respect to 'mobbing' (ie, workplace bullying).

Changes concerning posting of employees

The deadline for implementing changes in the regulations on the posting of employees into the Polish legal system in connection with the implementation of EU Directive 2018/957 was 30 July 2020. Legislative work on the amendment to the Act on the Posting of Employees has not yet been completed (the act will be reviewed by the Senate at the next session); however, employers posting their employees should prepare for thorough changes.

The key changes to the rules governing the posting of employees include the following:

• Broadening the definition of an 'employer posting an employee' to include temporary work agencies or job agencies referring employees to the user's employer which temporarily posts the employees to work in Poland or another EU member state.
• The introduction of the obligation to pay all components of the remuneration (not only the minimum remuneration) arising from Polish labour law.
• The introduction of the obligation to pay the amount to cover the costs of business travel to the place of posting or another place where the employee's duties will be performed in or outside Poland.
• The introduction of a 12-month period which guarantees that minimum employment terms and conditions will apply. If the 12-month posting period is exceeded, the employer must ensure not only the minimum terms and conditions of employment arising from the Labour Code, but also those arising from other regulations governing employee rights and obligations.
• The introduction of the principle of adding up posting periods of employees who perform the same task in the same place. If a posted worker is replaced with another posted worker performing the same task in the same place, the posting period will be the aggregate duration of the individual workers' posting periods.
• The expansion of the National Labour Inspectorate's competencies to include additional inspection powers and the power to receive justified notifications regarding the extension of a posting period by six months keeping the minimum employment standards.
• The introduction of electronic documents relating to the posting of employees to Poland (a statement on posting and notification regarding the change of information included in the statement must be submitted electronically).

New definition of 'mobbing'?

Legislative work is pending at Parliament (Sejm) on a draft act to amend the Labour Code. The draft amendment includes the expansion of the definition of 'mobbing' by adding an element of diversification of remuneration because of an employee's sex.

If the amendments are approved, 'mobbing' will entail an action or conduct relating to or directed against an employee, involving persistent and long-term harassment or intimidation or diversification of remuneration because of the employee's sex, that results in the employee's lowered sense of occupational usefulness, and aims to humiliate, ridicule, isolate or eliminate an employee from a group of co-workers.

In the view of employees, the draft amendment aims to realise the principle of equal remuneration and eliminate differences in salaries between women and men who hold the same positions. According to the draft amendment's authors:

presently functioning instruments of legal protection of employees against the differentiation of the remuneration of employees by employers because of sex, turn out to be ineffective and the expansion of the mobbing definition will constitute the strengthening of legal instruments that ensure respecting the principle of equal rights for women with respect to remuneration for the same work or the work with the same value.

Anti-discrimination regulations relating to equal treatment with respect to remuneration have already been incorporated into the Labour Code. In accordance with such regulations, employees, regardless of their sex:

• should be treated equally with relation to employment terms and conditions; and
• have the right to the same remuneration for the same work or work with the same value.

Therefore, the expanded definition of 'mobbing' is not necessary for employees to effectively fight for pay equality at their company.

The draft amendment's authors aim to improve employees' ability to pursue claims. However, will the redefinition of 'mobbing' result in a situation where employees will be able to pursue their claims effectively? Arguably not because, as is the case in discrimination claims where it is the employee who must substantiate unequal pay treatment due to sex discrimination (and therefore the employer has the burden of proving that the discrimination did not take place), in mobbing claims the burden of proof rests with the employee. The employee will also have to demonstrate that the pay difference between men and women caused their lowered sense of occupational usefulness and was aimed at humiliating, ridiculing, isolating or eliminating them from a group of their co-workers.

Even though an applicant's initiative must be considered to be right, the practice of applying the regulations on mobbing shows that employees may have a more difficult task in the practical use of the amended regulation.

For further information on this topic please contact Agnieszka Fedor or Aneta Brzózka at Soltysiński Kawecki & Szlęzak by telephone (+48 22 608 7000) or email (agnieszka.fedor@skslegal.pl or aneta.brzozka@skslegal.pl). The Sołtysiński Kawecki & Szlęzak website can be accessed at www.skslegal.pl.