Court rulings recognise bullying as 'occupational risk'

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Over 2001 and 2002, 'bullying', 'mobbing', or 'moral/psychological harassment' at work has been the subject of great debate in Spain. Alongside increasing media coverage, several recent court rulings have recognised bullying as an 'occupational risk', and thus covered by the compensation for occupational illnesses and industrial accidents. Trade unions have taken a number of initiatives in this area, while various items of legislation have been proposed to combat the problem.

'Bullying', 'mobbing', or 'moral/psychological harassment', is becoming an increasingly visible risk in employment in Spain, as in many other countries. According to figures from the International Labour Organisation (ILO), 750,000 people suffer from 'moral harassment' in the workplace in Spain (about 9% of the active population - 6.5% of men and 11.8% of women). A study by the University of Alcalá de Henares claims that the figure is over 1.5 million workers. Although reliable data are lacking, experts consider that bullying mainly affects women and people in a precarious employment situation. Health and safety experts state that its immediate origin is in interpersonal relations.

Though there have always been disputes and personal problems between persons at the same and different levels of responsibility at the workplace, bullying is considered by experts as psychological violence (harassment, discrimination, humiliation, abuse etc) performed systematically (at least once a week) in the workplace by one or several persons against another person over a period of at least six months. This hostile action is performed covertly, generally without witnesses, with the clear intention of damaging the victims and making them 'exclude' themselves. Though in isolation this hostile action may seem relatively harmless, its constant repetition causes in the victims a professional and psychological deterioration that may lead them to lose their self-esteem, cause psychosomatic illnesses, insomnia, alcoholism, anxiety or depression, and even lead to suicide.

Court rulings

Several recent court rulings in Spain have considered bullying at the workplace as a clear 'factor of occupational risk' and have consequently qualified the damage caused by it as an 'occupational contingency' (because of a quirk in the Spanish legislation, they consider it as an 'industrial accident' rather than an 'occupational illness', which would seem more coherent). The workers affected are thus entitled to receive the compensation and protective measures established for these contingencies.

The first and most significant ruling that considered bullying as an occupational risk with full legal consequences was issued by the High Court of Justice of Navarre (Tribunal Superior de Justícia de Navarra, TSJN) in April 2001, which found in favour of four cleaning workers at a state school who had been diagnosed as having a 'condition of anxiety'. The workers claimed that they were being harassed and persecuted by the school porter, who had been abusing them verbally and dirtying what they had cleaned. This was the first legal pronouncement to define the situation of bullying in the context of occupational illnesses, so it set an important precedent.

Subsequent rulings have also considered bullying as an objective occupational risk:

• a judgment issued by the Industrial Court of Vitoria (Juzgado de lo Social de Vitoria) in January 2002 recognised that two clerical workers at a crane company (Grúas Ibisate SA) developed a depressive state of anxiety caused by the humiliating treatment they had received at work;

• the same court recognised in April 2002 that the stress suffered by a worker at an ice-cream factory (Helados Miko SA) was caused by a long history of harassment by the company, and the judge considered the case as an industrial accident;

• in May 2002, the Industrial Court of Jaén (Juzgado de lo Social de Jaén) found in favour of a worker at the University of Jaén, recognising that his temporary incapacity was due to humiliation and moral harassment at the workplace; and

• in June 2002, the High Court of Justice of Catalonia (Tribunal Superior de Justícia de Catalunya, TSJC) sentenced the Institute for Catalan Studies (Institut d'Estudis Catalans, IEC) to pay compensation to a female employee for threatening her dignity by moving her arbitrarily from her habitual tasks and subjecting her to moral and professional harassment.

Trade union reactions

Due to their position in the system of industrial relations, many of the complaints and demands involving bullying are channelled through the trade unions. Though the problem is increasing, the unions can do little about it, so they have asked the government to exercise greater control, to carry out research into the situation and to develop or modify the legal provisions. They also state that these problems should be identified and assessed in risk evaluations, and that special attention must be given to the role of work organisation in the emergence and continuation of situations of bullying.

Both the General Workers' Confederation (Unión General de Trabajadores, UGT) and the Trade Union Confederation of Workers' Commissions (Comisiones Obreras, CC.OO) have asked the authorities to include measures against bullying in the penal and labour laws on the protection of the fundamental rights of workers. They are also encouraging workers' representatives to introduce measures to avoid or stop bullying when negotiating collective agreements. Furthermore, they give advice to workers who suffer bullying, so that the latter can request and obtain sick leave. The unions try to foster the resolution of disputes with employers, and if this is not possible they take the case to the Labour Inspectorate (Inspección de Trabajo) or, as a last resort, to the courts. Nevertheless, the trade unions do not appear too satisfied with the receptiveness of some state institutions (such as the Labour Inspectorate or the courts), who are often unaware of the existence of psycho-social hazards such as bullying.

Despite these initiatives, it seems that so far the unions' actions have not been as effective as would be desirable, or at least the victims of bullying do not seem satisfied with the solutions they provide. This may explain why associations of victims of bullying have been set up in several Spanish cities in order to raise public awareness of the personal, social and economic damage caused by bullying and to have it considered as a penal offence.

Political responses

Public opinion and reports in the media have led some political parties to present legislative initiatives in the form of petitions to the government to take steps to combat bullying. In June 2001, the Senate (upper house of parliament) issued a resolution approved by all the political groups that called for government legislation on bullying (so far without response). In November 2001, the Commission on Social Policy and Employment of the Congress (the lower house of parliament) gave its support to limited measures aimed at preventing and penalising moral harassment in the workplace. It asked the government to conduct a study of the extent, causes and consequences of bullying in Spain, and to provide labour inspectors with sufficient information to enable them to deal with complaints related to moral harassment and to detect it in companies.

In March 2002, a plenary sitting of the lower house of parliament rejected a bill presented by the opposition Socialist Party (Partido Socialista Obrero Español, PSOE) on the right not to suffer moral harassment in the workplace, which aimed to modify several articles of laws related to the rights of workers. The conservative People's Party (Partido Popular, PP) government justified its rejection by stating that a European Union regulation on the subject was pending. A couple of months later, with the votes of the PP and Catalan Nationalists (Convergència i Unió, CiU), the house refused to take into consideration another draft bill by the Socialist group, seeking to punish serious cases of moral harassment in the workplace with arrest.

Commentary

Moral harassment in the workplace is perceived as an increasing problem in Spain (as in Europe). It has been the subject of several court rulings, has been widely covered in the media, and now forms part of the political agenda. However, many researchers, politicians, trade unions and victims tend to focus on the relationship between the victim and the harasser, typifying harassers as being obsessive, paranoiac and psychopathic and victims as atypical persons who are excessively competent at their jobs. This involves the risk of reducing bullying to an individual problem of conflicting persons who are forced to interact in the same space because of their jobs. In other words, the problem is objectified by blaming certain persons - the harassers - as being incapable of changing their behaviour.

If this approach is adopted, the solutions and preventive measures will be practically limited to penalising the harassers and giving moral compensation to the victims (which is precisely what is proposed by the associations of victims and the political parties who are most sensitive to the subject). This approach fails to take into account the system of industrial relations in the companies or institutions concerned. It also ignores more general approaches that conceive bullying not only as a problem of the victims or harassers, but also as a symptom of shortcomings in work organisation, the working climate, the assignation of tasks, the selection or promotion of executives or middle managers, the style of management and the company culture (which are all the responsibility of the employer).

If situations of mobbing are diagnosed in a wider organisational context, it could be possible to take preventive measures through changes in work organisation. However, this could lead to a modification in the power relations in the company or institution and would involve making the management responsible for resolving the problem (which is already established in accordance with the general principles of the Law on Prevention of Occupational Risks). In the predominant approach, this responsibility tends to be diluted. This may partly explain why bullying is receiving more attention in comparison with other occupational hazards that are easier to diagnose and have not yet been resolved. (Josep Espluga-Trenc, Department of Sociology, Autonomous University of Barcelona)