Ministry of Employment website -

 

Firstly, it must be borne in mind that there is no specific legislation in Spain to cover workers against psychological harassment, so other existing provisions for worker protection must be turned to.

 

Although the phenomenon of mobbing (psychological harassment) has been the subject of many studies by international bodies, such as the International Labour Organization and the European Union, we must make it clear that there is no legal definition of what is meant by psychological harassment. Consequently, we must refer to the notion usually employed by tribunals in defining the behaviour patterns of mobbing or harassment at work in a company. From this standpoint, we can take the view that mobbing or moral harassment is pressure at work intended to induce a worker to leave on his or her own initiative by means of denigrating him or her in professional terms, making use of the employer's organisational powers abusively or in bad faith . The following requisites must thus be met:

a) Pressure: behaviour that is perceived by the person it is aimed at as an attack, even if that is not the intention of the perpetrator. In other words, the behaviour must be perceived as degrading behaviour by the victim.

 

b) Work-related: the pressure must be a consequence of the post of employment, and so it must be perpetrated by members of the company, whether by people exercising the powers associated with the employer (in which case we speak of bossing or downward psychological harassment), or by other colleagues (in which case the term is bullying).

c) It is done with a particular purpose in mind: to make the worker resort to leaving the company. Accordingly, since it is a planned activity, the harassing behaviour must be continuous and repeated. So the difference between mobbing and conflicts at work is that while the latter are one-off occurrences, mobbing is long-lasting.

 

The commonest behaviour patterns usually described as characteristic of harassment at work or mobbing are these:

- assigning pointless tasks, the employee thus being degraded in professional terms;

- systematically belittling the effort put in by the worker, or his or her success, or attributing them to chance or other factors;

- scorning or offending the employee as a person or in professional terms;

- restricting the employee's scope for communicating with his or her colleagues;

- ignoring, disregarding or excluding the employee within the working organisation.

 

What can one do when faced with a situation of mobbing? There is more than one way to respond to it:

 

1. Report the case to the Employment Inspectorate . Lodge a complaint with the Employment and Social Security Inspectorate. In this case, it will first be decided whether the employer is indeed behaving in a way that offends the dignity of the employee, or whether the mobbing behaviour exhibited by other colleagues at work may pose a risk to the employee's health as a result of the harassment he or she is enduring. In both cases, the employer may face an administrative-law penalty: in the former case, for perpetrating the active harassing behaviour involved, and in the latter for not fulfilling his or her general duty to prevent work-related risks as required by article 14 of the Law on the Prevention of Occupational Risks.

 

Additionally, from a social security standpoint, the psychological suffering stemming from the mobbing behaviour may be regarded as an occupational accident if it can be shown that there is a direct link between the employee's loss of good health and the psychological harassment (article 115 of the General Law on Social Security).

 

2. Court action. As a second option, the employee can also claim that his or her employment contract should be terminated under the provisions of article 50.1 of the Workers' Statute. In that case, he or she will be entitled to leave the company and to collect compensation, the amount being the equivalent of 45 days' salary for each year worked, though there is a cap of 42 months' pay for the total compensation to be paid.

However, in such cases account must be taken of the following considerations:

- Generally speaking, the employee must carry on working until a final decision is reached - i.e. until the last of any appeals filed by the employee or by the employer has been settled. Otherwise the employee is regarded as having abandoned his or her workplace, and thus loses all rights to demanding to have his or her contract terminated. In the event of the situation of harassment being intolerable, then after filing the action the judge can be asked to grant the suspension of the obligation to carry on working until a final decision is reached, as a precautionary measure.

 

- Refusing to comply with the employer's orders (what is known as the "worker's right to resist") is only allowable when the orders concerned are clearly illegal or contrary to the fundamental rights of the individual.

 

To have the statutory benefit of the assistance of a lawyer in drafting the action for presenting to the courts, the employee can turn to the free support offered by the Legal Advice Service, a body run by the Department of Justice, which is located at 41 Ronda de Sant Pere (5th floor) in Barcelona (working hours: from 9.00 am to 2.00 pm).

 

Legislation applying: articles 4 and 50 of the Workers' Statute; article 115 of the General Law on Social Security; article 14 of the Law on Preventing Occupational Risks; articles 8, 12 and 13 of the Law on Labour-Law Infractions and Penalties.

 

 

 

Under the provisions of article 4.2.e) of the Workers' Statute, all workers have to right to protection against verbal and physical abuse of a sexual nature, and against harassment for reasons of racial or ethnic origin, religion, convictions, disability, age or sexual orientation.

 

Sexual harassment can come from a superior or other colleagues in the company. Regardless of the form it takes, courses of action for seeking protection against situations of sexual harassment include the following:

 

a) Reporting the situation to the immediate superior of the person suffering the harassment, explaining the situation so that disciplinary action may be taken against the person harassing other employees at the company.

 

b) The situation can be reported to the Employment Inspectorate. Sexual harassment in a company is a very serious administrative offence, and the employer may face penalties regardless of who is carrying out the harassing (whether it be the employer in person, managers, other colleagues and so on), as provided in article 8.13 of the Law on Labour-Law Infractions and Penalties The employer may likewise face penalties if he or she does nothing to remedy the situation despite being aware of it, as provided in article 8.13 part two of the Law on Labour-Law Infractions and Penalties. 

 

c) Moreover, in some cases, sexual harassment is regarded as a criminal offence, and so a criminal-law action can be submitted to the relevant courts in connection with such behaviour. However, it should be born in mind that sexual harassment is only regarded as a criminal offence when it involves soliciting sexual favours from the harassed person (article 184 of the Penal Code).

 

In such cases, the person bringing the legal action can have the benefit of the assistance of a lawyer by turning to the free support offered by the Legal Advice Service, a body run by the Department of Justice (which is located at 41 Ronda de Sant Pere (5th floor) in Barcelona (working hours: from 9.00 am to 2.00 pm).

 

If the employee bringing the action in such situations is dismissed as a reprisal, the dismissal must be contested within 20 days for it to be declared null and void, the employee thus being reinstated to his or her post. Moreover, since such behaviour entails the breach of a fundamental right, compensation for dignitary tort can be claimed through the courts.

d) Independently of the above actions, any psychological suffering (distress, depression, etc.) that may ensue from situations of sexual harassment at the company may be regarded as accidents at work if it can be shown that there is relation of cause and effect between the suffering and the situation brought about at the company (article 115 of the General Law on Social Security).

The relevant legislation: article 4 of the Workers' Statute; article 8.13 and 8.13. part two of the Law on Labour-Law Infractions and Penalties, article 184 of the Penal Code; and article 115 of the General Law on Social Security.

 

 

 

Workers' representatives, staff delegates and members of the Workers' Committee cannot be dismissed or disciplined for pursuing their work as the representatives of the workers for the duration of their tenure as representatives or for one year thereafter (article 68.c) of the Workers' Statute). However, it must be borne in mind that this functional immunity only covers the pursuit of the functions involved in being a workers' representative, and thus provides no safeguard against disciplinary measures for failing to perform other duties. Even though the law only makes reference to workers' representatives, in the case law of the Constitutional Court this protection afforded to workers' representatives by the Workers' Statute is extended to cover workers taking part in elections as candidates and who are, thus, not yet elected representatives.

 

Furthermore, it is worth remembering that according to articles 28 (on the freedom to form and join trade unions) and 14 (the principle of equality) of the Spanish Constitution, any company decision that adversely affects a worker and is prompted merely on grounds of his or her membership of a trade union is to be regarded as anti-trade union and discriminatory. Hence any company decision of that kind will be regarded as null and void.

 

This prohibition on discriminating against workers' representatives (and trade union members) means that the position of workers is reinforced in practice on the grounds that if they can produce evidence that there is a connection between their representational work and the company's decision, then it falls to the employer to prove that the dismissal or disciplinary measures suffered by the representatives were not adopted for anti-trade union reasons. If the employer fails to produce evidence, the dismissal or disciplinary measures will be regarded as null and void.

 

In the event of workers being involved who are not members of any trade union or candidates in union elections or workers' representatives of other kinds (members of the workers' committee or staff delegates), but who undertake trade-union related activities (such as calling for elections), some judgments given by the higher courts of justice (particularly the Higher Court of Justice of Asturias) uphold the view that decisions taken by the employer on the basis of the activities undertaken by such workers may be regarded as a breach of the trade-union freedom recognised in article 28 of the Spanish Constitution. Accordingly, as was said for the previous cases discussed, if the worker concerned can produce evidence of a connection between the dismissal and trade-union activity, it will the company that has to prove that the dismissal was not based on trade-union activities. If the company cannot demonstrate the dismissal was not based on trade-union activities, then the dismissal will be regarded as null and void.

 

The following courses of action can be taken in such situations:

 

a) Report the matter to the Employment Inspectorate . Under article 8.12 of the Law on Labour-Law Infractions and Penalties, instances of discrimination based on trade-union action may be regarded as very serious violations.

b) Contest the dismissal on the grounds of discrimination . In this case, the time allowed for bringing the complaint is 20 days from the effective date of dismissal.

To have the assistance of a lawyer in drawing up the complaint, the person concerned can take advantage of the free support service provided by the Legal Advice Service, which is run by the Justice Department, which is located at 41 Ronda de Sant Pere (5th floor) in Barcelona (working hours: from 9.00 am to 2.00 pm).

In this case, if the dismissal is declared null and void, the employer is obliged to reinstate those dismissed and to pay their salaries as from the date of dismissal.

 

 

The legal provisions applying: articles 14 and 28 of the Spanish Constitution; article 68.c of the Workers' Statute; articles 12 and 13 of the Organic Law on Trade Union Freedom; article 8.12 of the Law on Labour-Law Infractions and Penalties.