Poland: Employee Mental Health – an increasingly pressing issue

Mental health is a topic that has been talked about more and more openly in recent years. This also applies to employee mental health since an increasing number of sick leave notes are being issued on account of mental and behavioural disorders. This group of conditions includes depression, schizophrenia, neurosis, anxiety disorders, personality disorders and responses to severe stress.

According to data from the Social Security Institution (ZUS), 2023 saw the number of sick leave notes issued on account of such disorders increase by 8.7 per cent on the previous year. In 2023, doctors issued more than 1.4 million sick leave notes, which translated into 26 million days of sick leave.

Employee health, including mental health, has an impact on the working environment and on employers themselves, including, in particular, on absenteeism, the need for replacements, increased staff turnover, lower work commitment and decreased work efficiency.

Since November is Mental Health Month, it is worth considering what responsibilities and opportunities an employer has with regard to employee mental health, whether a company reflects this in its HR policy, and whether an employer demonstrates inclusiveness in this area.

What is the employer's responsibility?

The Labour Code indirectly imposes numerous obligations on employers related to employee mental health. These duties include ensuring safe and hygienic working conditions (Article 207 § 2 of the Labour Code), adhering to the principles of social co-existence in the workplace (Article 94(10) of the Labour Code), the equal treatment of employees and counteracting discrimination (Article 94(2b) in connection with Article 183a] § 1 of the Labour Code), as well as preventing mobbing in the workplace (Article 943] § 1 of the Labour Code).

It should also be kept in mind that the employers should include mental health risks for employees in occupational risk assessments and address them in an active manner. In addition, there are occupations or positions that are particularly exposed to risk and stress, including risk-related stress (drivers, including Uber or Bolt drivers, people working in security, performing work at elevated places or judges).

If these obligations are ignored, employees can take legal action.

How can employers influence the psychological well-being of their employees?

Employers should prepare a tailored policy for the mental well-being of their employees. The global standard ISO 450003 provides good guidance on managing mental health in the workplace for employers intending to develop such a policy.

It is important to offer employee training that provides tools for identifying and resolving team tensions as well as stress management techniques. Another idea is to create a workplace space where people can "de-stress" in a way of their choosing.

The monitoring of the workplace atmosphere by means of anonymous surveys is also a necessary element that allows any worrying signals to be addressed in advance. As complementary measures, employers can put in place anti-discrimination and anti-harassment policies, a work organisation that allows for a work-life balance and a properly structured benefits package.

What solutions can be deployed to support employee work-life-balance?

Depending on the employer's situation, work organisation and employee preferences, semi-remote working and flexible working schedules can be considered.

Companies should take measures to reduce overtime as well as to ensure that employees take regular annual leave.

How to put in place effective procedures against mobbing and discrimination?

It is the employer’s statutory duty to prevent mobbing and discrimination, and case law provides guidance on how to implement relevant preventive measures.

In its judgement of 21 April 2015 in case II PK 149/14, the Supreme Court noted that the duty to counteract mobbing not only consists in actions concerning incidents of mobbing but also in preventive actions, which should be real and effective. This means that employers should display an attitude towards mobbing that is proactive and focused on preventing mobbing rather than on simply reacting to any reported or observed irregularities.

Training plays an important role in this area, including training directed at managers, along with engagement surveys and follow-up measures.

In the context of monitoring behaviour in the workplace, companies should provide opportunities for employees to safely report any undesirable behaviour displayed towards them or which they have observed being displayed towards other employees. The new Whistleblowers Protection Act (of 14 June 2024, which has been in force since 25 September 2024) provides a number of guidelines in this regard and which can also be implemented voluntarily by entities that are not bound by the obligation stipulated in the Act.

For example, anonymous reports can be a valuable source of information about undesirable behaviour in the workplace. On the other hand, however, they can also be exploited as a means of harming other employees or a boss. It is worth remembering that even if a company allows anonymous submissions, obviously false or unfounded submissions need not be taken into consideration. The company may also choose not to accept anonymous submissions.

What benefits can support employee psychological well-being?

Before finalising the list of perks offered by an employer, it is worth identifying employee preferences bearing in mind the Latin phrase translated as "a healthy mind in a healthy body". A healthy lifestyle can be promoted by means of providing employees with health club memberships, meal cards or healthy snacks at work.

It has become a frequent practice for employers to also grant additional (over and above statutory) time off work to employees at particularly difficult times in their lives, such as the illness or death of their loved ones.

In addition, Employee Assistance Programmes, which include the possibility of anonymous psychological counselling, are gaining in popularity.

Are there any special rights for an employee struggling with mental health issues?

Although mental health problems are talked about more and more openly, in the workplace too, mental health issues as such do not imply any special privileges for the employee concerned, either from the employer or from colleagues. In particular, any reference to mental problems and possible therapy cannot, in the long run, justify the application of any special rules towards an employee or tolerance for attitudes that affect commitment and performance at work.

In the long term, such measures, although most often motivated by a desire to support the employee, can foster the employee’s belief that the employee is bound by different, more favourable conditions than the employee's colleagues and that the employee “can do more”. This can then lead to or exacerbate divisions and conflicts within a team, including the exclusion of an employee who is struggling with mental health problems, which exacerbates these problems to the detriment of both the employee and the employer, and in extreme cases can even lead to bullying.

In such cases, managerial competence is crucial, as a manager should support an employee with appropriate sensitivity, while maintaining rules of cooperation that are acceptable to all.

Example

A female employee of the company seems stressed at every interview with the manager and often cries at work. She is not performing at her best. She recently told some colleagues that she suspects she is suffering from depression. During her annual interview, the manager, out of concern for the employee, did not communicate the negative elements of the appraisal to her and did not point out the areas in which she needed to improve. The employee received the same percentage increase as other team members. However, due to her brief length of service, she earns the least in the team. The employee demanded a higher salary increase, motivated by the good annual evaluation she had received. How should the company proceed?

First of all, the supervisor's behaviour in the situation at hand was incorrect. The employee was not fully informed about the assessment of her performance and the existing objections. On the one hand, it deprives her of the opportunity to improve in order to meet her employer's expectations. On the other hand, such incomplete information about an employee's performance may, in some cases, limit or even prevent an employer from taking personnel action, e.g. by making it more difficult to refuse a higher salary increase on the basis of existing objections, or by making it more difficult to terminate a contract on the basis of an employee's performance record.

In such situation, the employee's manager should have considered conducting the meeting in the least uncomfortable way for the employee, e.g. involving the HR officer, giving the employee an agenda for the meeting in advance, including an announcement to discuss areas for improvement. To avoid further complications in the future, transparency in communication with the employee is often the best solution.

Can an employee with mental health problems be dismissed?

Not if the problems do not affect the employee's performance and such mental issues would be the sole reason for dismissal. It is considered discrimination to dismiss an employee because of mental health problems when there is no objective evidence that the employee is not performing his or her duties properly (and the employer fears that this may happen in the future, for example).

The situation is different when the dismissal of an employee is motivated by reasons attributable to the employee (e.g. unsatisfactory performance, breach of employee duties) or those attributable to the enterprise (e.g. liquidation of a position). The fact that an employee is struggling with mental health problems does not give him or her any special rights or protection. However, each case must be approached individually. In some situations, it may prove to be unjust or morally objectionable to terminate an employee's contract under the circumstances (social conscience principles).

Is it possible for an employer to refer an employee whom they suspect of having mental health problems for a medical examination?

As a rule, if such a suspicion is well-founded and in a situation where it could endanger the health or life of the employee (but also of other employees), the employer has the possibility of referring the employee for an occupational health examination. If occupational health physicians find that there is a basis for such suspicions, they may refer the employee for additional examinations and even psychological and psychiatric counselling.

What if employees who are struggling with mental health problems take medication that affects their ability to perform the job or their suitability for a given position?

The employer cannot independently assess an employee's health status. Psychotropic drugs may cause false positive drug tests if the employer has implemented on-site sobriety testing for employees. Such a result entitles the employer to refuse to allow the employee to work.

If an employer becomes aware that an employee is taking medication that affects the ability or suitability of the employee to perform their work-related duties, the employer should send the employee home and refer the employee to an occupational health professional who can determine whether there are any medical reasons preventing the employee from performing the employee's duties.

According to the authors

Can employers or employees comment on another employees' mental health? Of course not. While it is important to promote openness and acceptance in the workplace, commenting on employees' mental health can be a violation of their personal rights. It should also be noted that information about an employee's health is sensitive data and therefore subject to special protection. Moreover, comments referring to an employee's mental health are a common and typical form of bullying aimed at demeaning a co-worker in the eyes of his or her colleagues.

The Article was published on 7 November 2024 in the daily newspaper Rzeczpospolita (in Polish only).