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Feb 18 2010

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Europe: Finally – a legal basis for ending workplace bullying?

By Guy Castegnaro & Ariane Claverie, International Law Office

On June 25 2009 the Union of Luxembourg Enterprises, the Independent Trade Union Confederation of Luxembourg and the Luxembourg Confederation of Christian Trade Unions signed an industry-level agreement on bullying and violence at work. The agreement between the social partners gives effect to a framework agreement signed at European level on April 26 2007. The Luxembourg agreement adopts the conclusions of the European framework agreement and defines its terms of application.

The Luxembourg agreement fills an significant gap – previously, Luxembourg law had no agreed and generally applicable definition of ‘bullying’ in the context of the private-sector workplace, although sexual and harassment based on discrimination were defined and punishable by law.

Defining ‘bullying’
Article 6 of the Law of August 11 1982 sets out penalties for bullying, but without giving a complete definition of the term. It states that:

“the [criminal] penalties in Article 2 apply to a person who has knowingly bothered or disturbed someone through repeated and untimely phone calls or who has bullied him or her by written messages or other means.”

Similarly, Article L162-12 of the Labour Code requires social partners that negotiate collective agreements to make provision “for procedures to counteract sexual harassment and bullying, including mobbing, within the framework of the collective agreement and [for] penalties, notably disciplinary measures”. However, the article offers no definition of ‘bullying’. Article 442(2) of the Penal Code, which is based on Belgian legislation, includes the concept of ‘obsessive bullying’ and provides for penalties against “a person who has repeatedly bullied [a victim] where that person knew or should have known that he or she was seriously impinging… on the [victim's] peace”.

The agreement states that:

“bullying takes place when someone within a company commits wrongful, repeated and wilful actions towards an employee or a manager of the company with the intention or effect of:

– undermining his or her rights or dignity;

– adversely affecting his or her working conditions or impairing his or her professional prospects by creating an intimidating, hostile, degrading, humiliating or offensive environment; or

– adversely affecting his or her physical or mental health.” Like the European agreement, the Luxembourg agreement emphasizes that bullying must involve the repetition of wrongful acts.

The agreement defines ‘violence in the workplace’ as aggression by an employee or manager directed through “deliberate actions [at] another person with the purpose or impact of affecting his or her physical or moral integrity”. It goes beyond the wording of the European agreement and extends its application to the prevention of violence at work caused by “a third party from outside the company”. For example, this provision would require a bus company to prevent and take steps in respect of acts of aggression by passengers against its drivers.

Although the formalization of the term ‘bullying’ is significant, the lack of a legal definition has not prevented labour courts from issuing rulings in respect of such actions. Several tribunals have suggested interpretations with reference to French, Belgian or EU law or expert commentaries on the subject. However, an agreed definition is one of the agreement’s main benefits.

Key provisions
The agreement seeks to implement the guidelines of the European framework agreement. It requires companies to introduce a transparent (and therefore presumably written) procedure for the prevention and management of bullying and violence at work as a result of consultation with staff representatives. This procedure may be determined either at company level (eg, in internal regulations) or at sector level. However, the implementation of the procedure may not “impose an unnecessary burden on small and medium-sized enterprises”.

The procedure must include:

– an indication that no form of bullying or violence is tolerated within the company and that it is everyone’s responsibility to ensure that this principle is enforced;

– preventive measures, including:

– providing information and training for workers and managers;

– identifying a qualified intermediary; and

– defining victim support procedures;

– a risk management plan and a workplace spatial management plan in order to prevent violence;

– a management procedure for acts of bullying or violence, which should take account of the need for:

– confidentiality and discretion in the investigation and management of such acts;

– reasonable timeframes;

– a fair hearing for all parties;

– penalties for false accusations;

– external assistance in certain cases; and

– victim support;

– transparency in determining appropriate disciplinary measures against perpetrators; and

– protection for victims and witnesses, including:

– a clear prohibition against retaliation following denunciation of, or resistance to, harassment;

– a guarantee that cases will be treated confidentially; and

– a guarantee that measures to stop harassment or violence will not be detrimental to the victim.

On January 13 2010 the agreement was given legal status in the Regulation of December 15 2009, which declares it to be binding. Since January 16 2010 it has applied to all companies established in Luxembourg.

Improved legal protection for victims?
The government has been reluctant to pass legislation on bullying. In November 2003 a bill on the issue was put forward for debate, but was ultimately removed from the legislative agenda following criticism from the Council of State that its proposals were inadequate and did not meet EU requirements. The agreement has now attracted similar criticism for merely reciting general principles, rather than introducing legal remedies equivalent to those used to combat discrimination and other unfair treatment as required under EU anti-discrimination law. In 2005 the Council of State held that:

“The state has an obligation to develop provisions in labour legislation which allocate to the employer a responsibility as regards discrimination perpetrated on company premises, and to make a range of corrective or ameliorative tools accessible to victims. The Council of State emphasizes the need for the authors of the agreement ensure that the general plan which they are creating to combat bullying is consistent with the requirements of the directives, in order to avoid discrepancy between the handling of bullying in general and the handling of harassment that constitutes discrimination.”

Thus, a person who feels that he or she has been the victim of discriminatory harassment need merely demonstrate facts that support the presumption of direct or indirect discrimination; the onus is on the defendant to prove that the principle of equal treatment has not been violated.

Similarly, an employee who believes himself or herself to have been a victim of sexual harassment may refuse to observe the terms of his or her employment contract and may terminate the contract without notice. The damages are borne by the employer as the party at fault for the immediate termination of the contract. Such fault may consist of the act of harassment itself, but an employer is equally culpable if it does not implement preventive measures or put an end to harassment. Moreover, an employee who is dismissed as a consequence of his or her objection to an act of sexual or discriminatory harassment or his or her testimony on such behaviour may ask the president of the employment tribunal to declare the dismissal null and void.

Significantly, the agreement provides no measures of this type with regard to bullying. This is problematic for persons who consider themselves to be victims of bullying and will continue to raise problems until appropriate legal mechanisms are provided.

Previously, the sole legal basis for a claim for bullying was Article 1134 of the Civil Code, which provides that agreements must be observed in good faith. It is accepted that an employer, being solely responsible for a company’s direction and organization, must ensure that its employees enjoy normal working conditions, and must take all necessary measures to prevent or stop any form of bullying within the company. The application of Article 1134 is nevertheless dependent on the victim’s ability to prove:

– the specific acts of bullying (giving dates and precise details of the acts);

– the fact that the employer was aware of the wrongful acts and did nothing to remedy the situation;
the damage caused; and

– a causal link between the bullying and the damage.

Thus, the likelihood of a successful claim is limited not by the absence of a legal definition of bullying, but rather by the legal basis on which such claims are considered and the lack of legal mechanisms available to victims (eg, modification of the burden of proof and recharacterization of a resignation as unfair dismissal). Thus, in the absence of exceptional circumstances, most claims do not succeed.

The agreement has changed this position. Judges can refer to a legal definition and an employer can be held responsible for its failure adequately to implement the preventive measures and risk management policy required by the agreement.

As for the “corrective or ameliorative tools” for which the Council of State has called, a bill is in preparation that should address the issue, putting victims of bullying on the same footing as victims of sexual harassment. This is expected to provide the final components of Luxembourg’s legal framework against bullying.

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Permanent link to this article: http://workplaceviolence.org/europe-finally-a-legal-basis-for-ending-workplace-bullying/

1 comment

  1. Marjorie Simpson

    I found this really interesting but cannot find any universal body that speaks to the prevalence of Horizontal Violence. This is my study and this information would really help.

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