No company is exempt from facing cases of workplace harassment or mobbing. At any moment, an employee could approach their management and file a complaint against a colleague or even against a superior. In a situation like this, and given the lack of specific legislation on the matter, it is crucial to determine whether the behavior in question truly constitutes harassment or workplace bullying.
The Occupational Health Council has defined workplace harassment as “(...) a process of psychological aggression characterized by the execution of violent acts of harassment, which occur within the context of a work relationship, against one or more employees, in a repeated and constant manner, not isolated, and over a prolonged period. It is carried out by one or more individuals who act from a position of power that is not necessarily hierarchical, potentially intending to undermine the self-esteem and dignity of the harassed person (...)”.
This definition highlights several key elements: (i) the presence of harassment acts,(ii) repetition and consistency,(iii) duration, and (iv) power asymmetry. However, the vagueness of these terms makes further clarification necessary.
For instance, it can be subjective which actions are considered to constitute harassment and which are not. Regarding this, legal doctrine has provided examples of behaviors that constitute harassment, which have been sanctioned by labor courts:
1. Assigning tasks without any value or usefulness.
2. Degrading a person by assigning them tasks below their professional capacity or usual competencies.
3. Exerting undue or arbitrary pressure on the person to perform their work.
4. Evaluating their work inequitably or with bias.
5. Systematically devaluing their efforts or professional success, or attributing it to other factors or third parties.
6. Unjustifiably amplifying and dramatizing minor or insignificant errors.
7. Belittling or undermining the person, personally or professionally.
8. Assigning unreasonable deadlines or workloads.
9. Restricting opportunities to communicate, speak, or meet with a superior.
10. Ignoring, excluding, or ostracizing them, pretending not to see them or making them feel invisible.
Additionally, ruling 655-2005 of the Second Chamber, still in effect according to various rulings from the high court, has established a framework of doctrinal criteria that elaborate on different elements, which have been used by labor courts in their rulings.
Concerning the above definition, it is important to clarify how repeated and consistent these acts of harassment must be. There is no definitive answer to this, as it will depend on the interpretation made by the judge in each specific case. However, Heinz Leymann suggests, which can serve as a reference for judges, that harassment is carried out “systematically and recurrently (on average, once a week) and over a prolonged period (on average, around 6 months)”. Nonetheless, different frequencies do not necessarily exclude the presence of workplace harassment behavior, as each case must be evaluated based on the specific conditions presented.
Another relevant aspect is that workplace harassment does not necessarily have to be hierarchical; it can occur both horizontally (by one or more employees against another or others of the same hierarchical level), vertically (by a superior against their subordinates or even upwards when a subordinate harasses a superior), or in a mixed manner (harassment facilitated by management—either by action or omission—and by colleagues).
Finally, in the previously mentioned ruling by the Second Chamber, two additional elements are considered that are not required by the definition of the Occupational Health Council but could be thoroughly analyzed by labor courts. These are intent and the ultimate goal. It states:
“(...) From the doctrinal conception of 'mobbing,' several common characteristics arise, including: a) Intent: aiming to undermine the self-esteem and dignity of the harassed person (...) e) The ultimate goal: the aggression aims for the harassed employee to leave their job (...)”
In short, the duty to eliminate workplace harassment requires responsible and sensitive handling by the employer. Preventive measures are essential to reduce cases and promote a culture of respect; however, responding decisively to complaints is a crucial factor that not only demonstrates the company's respect towards its employees but also enhances its reputation. Workplace harassment undermines employees' right to health but also creates risks for companies, which may end up with demotivated and less productive workers, and face legal consequences for moral damages, especially if it can be proven that workplace harassment constitutes a psychosocial risk.
If you witness or are informed about a case of workplace harassment, do not expose the workers or the company; seek legal advice to address the situation in the best possible way, reducing risks and avoiding potential lawsuits.
At Bufete Godínez y Asociados, we specialize in counseling and advising employers in labor and employment law. If you need any additional information, do not hesitate to contact us by clicking here.
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