Workplace harassment (mobbing) under Art. 50.1.a)
In legal doctrine and case law, establishing workplace harassment or "mobbing" requires that "anyone invoking moral harassment must not only demonstrate possible arbitrary exercises of managerial authority by the employer, but must also prove that the employer's purpose, as the active party in the harassment, was to harm the psychological integrity of the employee"
Written by Josep Conesa
Employment and insolvency lawyer
In accordance with established legal doctrine and case law, including the Constitutional Court ruling of 21 March 1986 (RTC 1986,38):
"the claimant is the primary driver of their own claim, and is therefore always required to exercise sufficient diligence, including in the area of evidence, even where discrimination is alleged"
HOW HARASSMENT IS PROVED:
Regarding the burden of proof, in accordance with rulings from the High Court of Justice of Madrid, including ruling no. 233/2006 of 21 March and Constitutional Court 49/2003, the courts require prima facie evidence.
"It is well established that prima facie evidence operates on two levels (see, inter alia, SsTC 90/1997 of 6 May [RTC 1997, 90] and 66/2002 of 21 March [RTC 2002, 66]). The first is the employee's obligation to provide reasonable prima facie evidence that the employer's act has infringed a fundamental right, initial evidence or plausible proof aimed at revealing the hidden motive alleged (STC 207/2001 of 22 October [RTC 2001, 207]). Such prima facie evidence does not consist merely in asserting the constitutional violation; rather, it must support a reasonable inference that the violation may have occurred (SsTC 87/1998 of 21 April [RTC 1998, 87]; 293/1993 of 18 October [RTC 1993, 293]; 140/1999 of 22 July [RTC 1999, 140]; 29/2000 of 31 January [RTC 2000, 29]; 207/2001 of 22 October [RTC 2001, 207]; 214/2001 of 29 October [RTC 2001, 214]; 14/2002 of 28 January [RTC 2002, 14]; 29/2002 of 11 February [RTC 2002, 29]; and 30/2002 of 11 February [RTC 2002, 30]). Only once this initial and unavoidable obligation has been met does the burden of proof shift to the respondent to demonstrate that their conduct had genuine reasons entirely unconnected to the alleged infringement, and that those reasons were sufficient to justify the decision taken. "
"In summary, a claimant who invokes the rule on the reversal of the burden of proof must develop a sufficiently precise and specific line of argument around the indicators of the existence of discrimination. Once that evidentiary threshold has been met, the burden shifts to the respondent to prove the existence of sufficient, genuine and substantive grounds to qualify the contested management decision or practice as reasonable and free from any intention to infringe the fundamental right in question, the only means of rebutting the prima facie case created by those indicators ( SSTC 90/1997, of 6 May [ RTC 1997, 90] , F, 5, and 29/2002, of 11 February [ RTC 2002, 29] , F, 3, amongst others)."
Likewise,
"the facts giving rise to the action brought by the claimant must be established, and the burden of proving those facts rests with the claimant, as held, applying the rule in art. 1214 of the Spanish Civil Code ( LEG 1889, 27 ), by the Supreme Court judgments of 14 November 1980 (RJ 1980, 4327), of 21 December 1981 (RJ 1981, 5278), of 15 April 1982 (RJ 1982, 1953) and of 31 October 1983 (RJ 1983, 5850), amongst many others, and as set out, following the entry into force of Law 1/2000, of 7 January ( RCL 2000, 34 , 962 and RCL 2001, 1892) , the Code of Civil Procedure, in its art. 217 , para. 2"
With regard to the burden of proof, Articles 96.1 and 181.2 of the Labour Jurisdiction Act would apply. Under art. 181.2 LJS, at the hearing, once sufficient indicators have been established of a violation of a fundamental right or of harassment, the respondent must provide an objective and reasonable justification. BUT ONLY AT THAT POINT, that is, where a claimant brings a claim on the basis of a violation of fundamental rights or harassment, the claimant must naturally prove the facts constituting their claim, demonstrating the harm suffered, establishing at the very least sufficient indicators or a prima facie case giving rise to a reasonable inference in support of the claim as pleaded. ONLY THEN does the burden shift to the respondent to prove that their decision was based on objective grounds entirely unconnected to any discriminatory or rights-infringing motive.
According to the doctrine of the Constitutional Court:
"for the burden of proof to shift to the defendant, it is not sufficient for the claimant to label the conduct as discriminatory or to make mere allegations of harassment, they must establish the existence of indicators that give rise to a reasonable suspicion, appearance or presumption in support of such a claim. Once that prima facie case has been made out, the defendant bears the burden of proving that the reasons behind their decision are legitimate. It cannot be required that they provide diabolical proof of a negative fact, namely, the absence of discrimination or harassment, but rather that the measure taken was reasonable and proportionate."
Contact our specialist to build your harassment case:
We recommend arranging a consultation, even online, to determine what evidence can be gathered: witness testimony, documentary evidence in the form of a log of incidents, or audio recordings. Contact us here for advice:
CHARACTERISTICS OF WORKPLACE HARASSMENT (MOBBING):
As set out in various judgments, including those of the High Court of Justice of Madrid, ruling no. 233/2006 of 21 March (AS 2006\1676), dated 29 February 2008 (AS 2008,1123), and the judgment of the High Court of Justice of Madrid no. 324/2010 of 9 April (AS 2010\1602), on the subject of moral harassment ("mobbing"):
"Workplace harassment is the subject of multidisciplinary study involving psychology, psychiatry, sociology and, of course, law. The Dictionary of the Royal Spanish Academy defines the verb 'to harass' as the act of pursuing someone without respite or rest."
The European Social Charter of 3 May 1996, in addressing moral harassment, refers to "reprehensible or explicitly hostile acts directed repeatedly at any employee in the workplace…"; and the European Commission, on 14 May 2001, likewise identified as an essential characteristic of harassment "systematic attacks over a prolonged period, whether carried out directly or indirectly…".
Workplace harassment must always exhibit certain objective features, namely systematic conduct, repetition and frequency, the requirement of persistence over time being one traditionally recognised in our judicial doctrine (STSJ País Vasco 20-4-02, STSJ Galicia 8-4-03 (AS 2003, 2893), STSJ Canarias/Las Palmas 28-4-03 (AS 2003, 3894)), as well as subjective elements such as intentionality and the pursuit of a specific objective.
The essential elements of this aberrant form of human conduct are, on the one hand, intent, the subjective element, directed at causing harm to another person's moral integrity, even where no actual damage to the employee's mental health occurs (the concept of moral integrity being distinct from that of mental health), a requirement that is consistently demanded in cases of this type of misconduct; and, on the other hand, the repeated nature of that rejecting behaviour, carried out systematically over a period of time. What matters is that the conduct is objectively humiliating, thereby implying moral harm, for even if the harasser may be considered unwell and therefore not fully responsible for their actions, the pursuit of humiliation or degradation is a characteristic feature of this behaviour, though not a strictly necessary one. (Rojas Rivero).
What defines workplace moral harassment is, without doubt, the systematic and prolonged psychological pressure exerted upon a person, being ignored, hounded, intimidated, worn down, harassed, frightened, bullied, besieged, belittled, humiliated, persecuted, or pushed aside, in the course of their work, with the aim of destroying their communication with others and attacking their personal dignity, so that, with their working life disrupted, they are driven to exclude themselves from it.
Intent and the systematic repetition of that pressure (Leymann generally defines this as at least once a week for a minimum of six months) are necessary requirements for conduct to qualify as workplace moral harassment, a phenomenon that, much like behaviour observed in the animal kingdom, sees weaker members of a group join forces against a stronger individual who, for various reasons, is attacked and excluded from the community.
However, not every instance of tension in the workplace can properly be labelled moral harassment. A distinction must be drawn between genuinely hostile, degrading, and systematically persecutory conduct and the rigorous enforcement of legitimate workplace standards.
In this context, moral harassment must not be confused with ordinary conflicts, confrontations, or disagreements within a company arising from the opposing interests of the parties to an employment relationship. Conflict, which has its own established resolution mechanisms within labour law, is inherent to that relationship, at least in any democratic, non-harmonist conception of employment relations. It has even been suggested that conflict is "a normal pathology of the employment relationship".
Nor should the state of exhaustion or psychological breakdown caused by professional stress, a product of increasing specialisation, internal competition within the company, inflexible working hours that make it difficult to balance work and family life, precarious employment and lack of job security, be confused with workplace harassment, which is characterised by intentional and repeated psychological intimidation.
Nor, however reprehensible they may be, can isolated instances of mistreatment, exposure to inadequate working conditions, or other forms of abuse in the employment relationship be equated with genuine workplace harassment."
WHERE THE EMPLOYER RESPONDS TO A PRIOR COMPLAINT BY THE employee: RIGHT TO PROTECTION FROM RETALIATION:
Regarding the right to protection from retaliation, according to the High Court of Justice of Catalonia, judgment of 24 March 2006 (AS 2006|2784):
"It is essential to bear in mind the importance, in such cases, of the rules governing the burden of proof. According to the established doctrine of this Court, where it is alleged that a particular decision in fact conceals conduct that infringes the fundamental rights of the person concerned, the burden falls on the party who took that measure to prove that it was based on reasonable grounds entirely unconnected with any intention to infringe a fundamental right. However, in order for this shift of the burden of proof (onus probandi) to the defendant to operate, it is not sufficient for the claimant merely to characterise the employer's conduct as discriminatory, the claimant must establish the existence of indications giving rise to a reasonable suspicion, appearance or presumption in support of that allegation, and once such prima facie evidence is adduced, the defendant bears the burden of proving that the facts underlying their decision are legitimate or, even without justifying their lawfulness, that they are reasonably unconnected with any intention to infringe fundamental rights. The defendant is not therefore required to discharge the near-impossible burden of proving a negative, the absence of discrimination, but rather to demonstrate the reasonableness and proportionality of the measure taken and its complete independence from any intention to infringe fundamental rights.".
ON BREACH OF CONTRACTUAL GOOD FAITH:
It should be noted that good faith, in itself, gives rise to obligations that go beyond the literal terms agreed by the parties to the contract.
One of the guiding principles of the legal system is that rights must be exercised in accordance with the requirements of good faith. This principle is breached when a party feigns ignorance of what they know, performs an ambiguous act in order to deliberately exploit its uncertain meaning, or creates a legal appearance only to contradict it afterwards to the detriment of those who placed their trust in it (Supreme Court, 31 March 1982, RJ 2364).
In essence, good faith in its objective sense constitutes a standard of required conduct, or, more precisely, a general principle of law, that imposes behaviour aligned with ethical values, thereby conditioning and limiting the exercise of subjective rights. As such, the principle becomes a yardstick for assessing conduct in the fulfilment of obligations, translated into directives equivalent to loyalty, honour, integrity and trust (Supreme Court, 4 March 1991, RJ 1822).
Good faith is a fundamental employment duty of workers: to fulfil the specific obligations of their post in accordance with the rules of good faith and diligence. Respect for good faith is a basic and central requirement for both parties to the contract. It should be noted that any breach thereof renders the exercise of rights unlawful or abusive, and places them outside the protection of the law (Supreme Court, 25 January 1988, RJ 42; 29 October 1988, RJ 8176).
Anyone who fails to act in this manner abuses the mutual trust that must exist between those who share a working environment during working hours. In doing so, they become responsible for a breach that can only be remedied by their removal from that working environment, one in which they have demonstrated an inability to conduct themselves appropriately.
It should also be noted that the Supreme Court has developed an extensive body of case law on the breach of contractual good faith, establishing that it gives rise to a duty of mutual fidelity between employer and employee, and that the employee requires a certain degree of freedom in carrying out their professional activity. However, that freedom must be exercised with a view to fully achieving the aims and objectives of the company. In this regard, it is a general principle of employment law that workers must fulfil their specific obligations in their post in accordance with the rules of good faith and diligence (Workers' Statute, Art. 5(a) and (b)). This concept is reiterated in Art. 20.2 of the Workers' Statute, which provides that the employee owes the employer the diligence and cooperation in the performance of work required by the applicable legislation, the collective bargaining agreement, and the orders or instructions issued by the employer in the regular exercise of their managerial powers (High Court of Justice of Andalusia, Judgment No. 1285/2000).
Similarly, the High Court of Justice of Andalusia, ruling no. 1285/2000, states (quoted verbatim):
"It is worth emphasising that the legal requirements of seriousness and culpability in the employee's breach are cumulative conditions, and that in order to establish culpability it is not necessary for the conduct to be intentional, such that a breach of the obligations set out in Article 54.2 of the Workers' Statute may arise not only through intentional or wilful conduct, but also through recklessness, negligence or a lack of due care. The Supreme Court has held (see, among others, ruling of 8 February 1991) that a breach of contractual good faith is deemed to have occurred even where no personal gain is established and no damage to the company is shown to have resulted, since it is sufficient that the duties of loyalty and fidelity implicit in any employment relationship have been violated."
It should be noted that, while all employees are bound by duties of fidelity and loyalty, those duties must be observed with greater rigour and care by individuals holding positions of high trust, given their professional standing within the company to which they belong, particularly where the individual occupies a position of trust and significant responsibility, with a decisive role in the company's operations (ruling of 25 February 1984, citing those of 16 March 1983 and 23 and 30 November 1982).
Along the same lines, according to the Supreme Court ruling of 31 October 1985, the ground for dismissal does not require any personal gain on the part of the employee, nor any loss suffered by the employer. It is sufficient that the employee's conduct undermines fair social coexistence and the company's reputation, or constitutes a failing attributable to the employee, since what is sanctioned is the violation of the duties of conduct and good faith that the employment contract imposes, so as not to betray the trust placed in the employee.
THE BEST WAY TO PREVENT WORKPLACE HARASSMENT IN A company:
We recommend implementing a harassment protocol. This will provide a formal channel through which harassment situations can be reported and managed.
For further information, please follow this link on PSYCHOSOCIAL RISKS IN THE WORKPLACE.
If you would like advice, please do not hesitate to contact us.
