Workplace harassment features repeatedly in employment law: it is a pattern of behaviour that recurs often enough for legislators and the courts to have recognised it as a serious problem, leading to legislation and case law designed to prevent such conduct from occurring.
The following tools are therefore available to employees or employers who encounter this issue in their workplaces.
Written by Albert Perez
Employment Law Adviser
The workplace harassment protocol
Albert Perez, employment lawyer
What is workplace harassment?
Workplace harassment is not defined in legislation. To find a definition, we must turn to case law — specifically ruling 56/2019 of 6 May, handed down by the Constitutional Court, which defines it as follows:
«The concept of workplace harassment emerged in psychology to address, from a therapeutic standpoint, a wide range of work-related stress situations and behaviours that share a common thread: by virtue of their repeated occurrence over time, their degrading effect on working conditions, or the hostility they entail, their purpose or result is to attack or endanger the personal integrity of the employee. When such situations or behaviours are driven by those who occupy a superior position in the organisational hierarchy — which is the most common scenario — this is generally referred to as 'downward vertical' or 'institutional' harassment. The objectives of workplace harassment can vary considerably: retaliating against a employee who is insufficiently compliant, marginalising them to prevent them from exposing their superiors' shortcomings, instilling fear to drive productivity gains, or satisfying the manipulative or predatory personality of the harasser (so-called 'perverse' harassment), among others. Within private organisations, workplace harassment often serves the purpose — or produces the result — of pressuring the targeted employee into resigning voluntarily, thereby sparing the company the cost of unfair dismissal compensation. In public administrations, given the particular characteristics of civil service employment, it frequently consists of the professional marginalisation of the employee for a variety of reasons (personal vendetta, covert disciplinary action, ideological discrimination)». «Workplace harassment situations, insofar as their purpose or result is to attack or endanger the integrity of the employee, engage the constitutional recognition of human dignity, the fundamental right to physical and moral integrity, and the prohibition of degrading treatment (Arts. 10.1 and 15 of the Spanish Constitution). That said, workplace harassment situations are so varied in form that they may also engage other fundamental rights. The aforementioned protocol of action has referred to this multi-faceted, rights-infringing nature of workplace harassment by presenting itself as a development of the Constitution, which 'recognises as fundamental rights of Spanish citizens the dignity of the person (Article 10), as well as physical and moral integrity — with no one to be subjected, in any circumstances, to torture or inhuman or degrading treatment or punishment (Article 15) — and the right to honour, personal and family privacy, and one's own image (Article 18); and which, in Article 40.2, entrusts public authorities with the duty to ensure health and safety at work'".
consequences of harassment FOR THE company
Article 14.2 of Law 31/1995 on the Prevention of Occupational Hazards establishes that it is the employer's obligation to ensure that the employee has a healthy working environment, and that harassment does not occur. If it does occur, the employer may be found to have failed in their duty of supervision (culpa in vigilando) and may face sanctions.
Online workplace harassment prevention protocol:
To avoid liability for failure to supervise, purchase our online workplace harassment prevention protocol here:
Link Protocolo Prevención Acoso
What can I do if I am being harassed at the company:
- Notify the company that you are being harassed and that you wish to find a solution. Once notified, the company is obliged to take measures to put a stop to the conduct in question. If it fails to do so, that would be the appropriate moment to bring a claim.
If no action is taken, the culpa in vigilando principle would apply and the employer would be jointly liable alongside the person responsible for the harassment.
- Request termination of contract under Article 50 of the Workers' Statute (breach of the employer's obligations). Keeping employees free from workplace harassment is an obligation imposed on the employer by Article 14.2 of Law 31/1995 on the Prevention of Occupational Hazards.
This option involves bringing a claim for termination of the employment relationship against the company on the grounds of the employer's breach of duties. The court will therefore need to determine whether the harassment genuinely occurred; if it does so, the employee will be entitled to receive compensation of 33 days' pay per year of service, as provided for under Article 50.2 itself. - In addition to this compensation, the employee will be entitled to claim damages for the infringement of one of their fundamental rights — specifically, Article 15 of the Spanish Constitution, namely the right to life and to physical and moral integrity. This is established by case law in decisions such as the Supreme Court judgment of 20 September 2011 (appeal no. 4137/2010), which in turn follows the approach set out in the Supreme Court judgment of 17 May 2006 (appeal no. 4372/2004).
DO YOU HAVE TO KEEP WORKING WHILE SEEKING CONTRACT TERMINATION DUE TO WORKPLACE HARASSMENT?
In this scenario, whilst justification is required, it is possible to request as an interim measure either a transfer to a different location or the option of remote working, in cases where continuing to attend the workplace would cause harm to the employee's physical or moral wellbeing. The judge may then order, as an interim measure, the suspension of the contract until the matter is resolved by a ruling determining whether or not the termination of the contract is justified.
How can I prove that I am being harassed?
See our post on "How to prove workplace harassment" at this link
employment lawyer specialising in workplace harassment
For any matter relating to workplace harassment, please contact our specialist:
