Month: April 2014

Summary of Legislation and Policies enacted by counties other than the UK to protect Workers against Workplace Bullying

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This blog summarises the approach taken by countries other than the UK to the issue of workplace bullying. This supplements the previous blogs which have looked at Germany, Spain, Sweden and France.

 

The following is taken from ‘International laws / When the abuser goes to work’  http://abusergoestowork.com/legislation.international-laws

NORWAY. In 2004, Norway’s Prime Minister launched a campaign against workplace bullying as part of the country’s Tripartite Agreement on an Inclusive Workplace.

 

THE NETHERLANDS:  Since 1994, employers in The Netherlands have been legally obliged through the Working Conditions Act to protect their employees from psychological aggression in the workplace and their negative consequences, including mobbing/bullying.

LUXEMBOURG:  Luxembourg signed its first collective agreement on moral harassment in 2001.  More recently, in 2009, Luxembourg published a labour regulation  that provides a general definition of the term ‘moral harassment’ that is not limited to harassment based on discrimination. The regulation provides that:

“Harassment occurs when a person belonging to a company commits wrongful, deliberate and repeated acts against a worker or manager of the company with the purpose or effect of:  violating his or her rights or human dignity; altering his or her circumstances or working conditions or compromising his or her professional future by creating an intimidating, hostile, degrading, humiliating or offensive work environment; or  affecting his or her physical or psychological health.”

TURKEY: An employer must protect all employees from psychological abuse in the workplace pursuant to an amendment to Article 417 of the Debts law passed by the Turkish parliament in January 2011.  The law makes it an offense to commit certain acts or fail to take action to prevent the commitment of acts such as verbal insults, belittling, and intentional isolation.

AUSTRALIA:  Effective July 1, 2013, workers who believe they have been bullied can complain  to the federal Fair Work Commission (FWC) , the nation’s national workplace relations tribunal. The FWC will deal with the matter as a priority.  The FWC can issue an  order in response to  the complaint  and/or refer the matter to the relevant state safety regulator. Perpetrators face civil penalties and fines ( up to approximately $34,000 American dollars).  Bullying” is defined as “repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.”  It does not include “reasonable management practices including performance management.”

 

BELGIUM: Belgium enacted legislation against moral harassment in 2002 which obliges companies  to:

  • set up an internal procedure to handle harassment complaints by employees;
  • establish a plan for preventing the occurrence of violence and harassment at work;
  • appoint a prevention adviser.
  • Failure to develop a prevention policy or to assign a prevention advisor is punishable by criminal prosecution (imprisonment of up to one year) or administrative penalties and fines against  the employer.

The following is taken from the Seminar on Workplace Bullying and Harassment, JILPT Report 2013 http://www.jil.go.jp/english/reports/documents/jilpt-reports/no.12.pdf

 

Finland

In the Work and Health Survey by the Finnish Institute of Occupational Health, the prevalence of workplace bullying has been assessed every third year since 1997. In the survey, bullying is defined “Psychological violence and bullying at work means negative, oppressing and insulting treatment that is continuous and repetitive.”

 

Finnish Occupational Safety and Health Act (738/2002) came into operation on 1.1. 2003, and includes a special section on harassment and other inappropriate behaviour at work. The section on harassment is reactive by nature. Harassment and other inappropriate treatment are also mentioned in the general obligations for employees.(inEnglish:http://www.finlex.fi/fi/laki/kaannokset/2002/en20020738.pdf)

The Act obliges the employer/manager/supervisor to take action when he/she receives information about inappropriate treatment and bullying. If the perpetrator is the supervisor  it is his/her superior who is to take action to investigate and resolve the situation.

If the employer doesn‘t take action the employee is advised to contact occupational safety and health authorities/ inspectors. The Occupational Safety and Health Act has been in force for ten years, and most employers are nowadays aware of the “Harassment” section, and their duties on the bases of the Act. Also safety and health representatives, shop stewards, occupational health care personnel, and most employees are familiar with the section on harassment and inappropriate behaviour.

 

The section on harassment in the new Occupational Safety and Health Act (1.1.2003) has activated organizations to develop and implement policies and guidelines for workplace bullying.

Safety and health inspectors discuss inappropriate behaviour and harassment always when they are carrying out an inspection in a workplace. Inspectors ask if any cases have taken place in the organization, about the existence of policy and procedures for inappropriate behavior and bullying, and about training on harassment and inappropriate behaviour. If there is no policy in place in the organization, the inspector advises the organization to draw up one. In inspections, a survey called VALMERI is used which includes also a question on harassment and inappropriate behaviour.

In the Finnish Quality of Work Life Survey 2008, the measures taken to eliminate or prevent workplace bullying at the workplace the most commonly observed measures were:

1) good treatment or elimination of bullying had been taken into consideration in

supervisory activity (45% of respondents),

2) prevention of bullying had been taken into account in occupational health and safety (39%), and

3) a set of rules for good treatment had been drawn up (33%) (Lehto & Sutela 2009).

Next week the blog will look at how these countrys’ laws and policies differ to the UK and the reasons given why UK politicians haven’t agreed to pass the Dignity at Work Bill even though it was passed by the House of Lords.

Support the campaign to introduce legislation to protect workers against workplace bullying in the UK.

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Swedish Legislation to Protect Workers against Workplace Bullying.

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“The anti-bullying movement began in Sweden. In the 1980’s, ex-patriat German Heinz Leymann (1932-1999), psychologist and doctor of medical science, studied worker trauma. He established a unique clinic at Violen for individuals traumatized by the workplace. His scientific articles linking mobbing (bullying) to Post Traumatic Stress Disorder were published from 1990 to 1999. He wrote books and became a staunch advocate to stop bullying at work. Excerpt taken from The Workplace Bullying Institute     http://www.workplacebullying.org/the-movement/

The following is an excerpt taken from 2013 JILPT Seminar on Workplace Bullying and Harassment http://www.jil.go.jp/english/reports/documents/jilpt-reports/no.12.pdf

Leymann (1990) defined mobbing as hostile and unethical communication which is directed in a systematic way by one or a number of persons, mainly towards one individual. These actions often take place (almost every day) over a long period (at least for six months) and because of this frequency and duration, result in considerable psychic, psychosomatic and social misery (1990). Such hostile and unethical activities repeated frequently over long periods of time can change the climate of the workplace and stigmatize the exposed individual. The bullying is legitimized when workplace management accepts and adopts prejudices concerning the stigmatized person. Bullying implies an imbalance in the power between the bullied victim and the bully.” (Thylefors 1999)

“The process of bullying can be described as developing through slander, deceit, insults, injustice, or special treatment. Its purpose is to alienate the bullied individual from the community at work, and finally from the workplace itself. Bullying appears to be to an attempt solve problems at the workplace, but these continue in other forms and involve other people after the bullied individual has been expelled.” Strandmark & Hallberg 2007b.

Hallberg & Strandmark (2006) explored the health consequences of workplace Bullying. Adult bullying is perceived by its victims as a severe psychological trauma or a traumatic life event. Sub categories included  1) feeling guilt, shame and diminishing self-esteem, 2) developing symptoms and reactions, 3) getting limited space for action, 4) working through the course of events, and 5) trying to obtain redress. Bullying included the spreading of rumours and repeated insults aimed at changing the image of the bullied person negatively, resulting in feelings of guilt, shame and diminishing self-esteem in the exposed person. Physical and psychosomatic symptoms gradually emerged ( developing symptoms and reactions ) and medical treatment often follow. The longer the bullying continued, the more limited became the possibility to change the situation ( getting limited space for action ), such as changing the workplace. Returning to a normal life might be possible, but presupposed the process of working through the course of events related to the bullying. This process was often painful, as events from bullying are re-lived over and over again, both in dreams and when awake. The bullied person was also trying to obtain redress through such means as monetary compensation, professional confirmation, or by gaining a new meaning in life.

Despite this, bullying left an internal scar or vulnerability they never entirely heal; the bullied person remains marked for life. The following excerpt from the interviews illustrates the core category:

 No, I will never forget the bullying, never ever. There is still a large scar left inside me. I always have to carry this scar with me . . . . and I have never managed to understand the bullies, either. That was an episode that now has passed away and now I have to continue living my life. But I think it would have been much easier to live my life without this scar inside. . . . that is what I think . . . . definitely. When I, for example, read in the paper about someone being bullied somewhere, the old scar reopens and it hurts. In some way I must try to repress it all the time . . . . if it is possible.

The Swedish Work Environment Act (SFS: 2008) states the grounds for a good work environment. The purpose of this act is to prevent ill-health and accidents at work and generally promote a positive atmosphere environment. The law says that work circumstances shall be adjusted to human beings different prerequisites taking into account physical and psychological considerations. It should strive to enable variation, social contact, and collaboration, and connection between individual work tasks. Another basic law that opposes bullying is the Criminal Code (SFS 1962:700), including avoidance of powerlessness, abuse of one’ s exposed disposition, and insulting behaviour. Sweden published its first legal regulation (AFS 1993:17) targeting workplace bullying  in the early 1990s. It is entitled Victimization at Work.

Swedish legislation:

  • outlawed “recurrent reprehensible or distinctly negative actions which are directed against individual employees in an offensive manner and can result in those employees being placed outside the workplace community”;
  • created a duty for employers to swiftly investigate, mediate and counter any instances of bullying as well as implement preventative organizational measures against workplace bullying; and
  • took a “non-punitive” approach to bullying by aiming to resolve the problem through dialogue and consensus rather than through sanctioning employers.

http://www.internationallaborlaw.com/files/2013/01/Bullying-Harassment-and-Stress-in-the-workplace-A-European-Perspective.pdf

However, Hoel and Einarsen (2010) have evaluated the effect of the ordinance Victimization at Work by semi-structured interviews with 18 stakeholders from employer and trade unions, enforcement authorities, academia, and victims support organizations. They conclude that the legislation has been far from successful. Their findings show that the ordinance has shortcomings related to the vagueness of its regulations, difficulties in engaging employers control and in managing attitudes and human relationships, problems with the Labour Inspectorate, and lack of progress in getting responses from the trade unions. They argued that the prevailing Swedish culture appears to sanction tacit bullying and the right to exclude somebody from the workplace.

Hoel and Einarsen went on to argue that the legislation must be supported by a competent enforcement agency.

In 2012 GullBritt Rahm et al. also found that there was still a prevalence of workplace bullying in Sweden. Their research shows the following;

  • Prevalence from 3.5% to 11%
  • 18.5% were bullied based on the critera of one negative act per week during the last six months (Leymann 1996)
  • 6.8% were bullied by two negative acts per week during the last six month (Mikkelsen & Einarsen 2001)
  • 4% experienced self-labelled bullying
  • 22% had witnessed bullying
  • 38% had been bullied earlier in life
  • 8.5% had been occupational bullied
  • 2.3% had been exposed to severe bullying

In summary then, it seems to me that Sweden takes bullying in the workplace seriously and has done so over a long period of time. Swedish research shows the life time harm bullying  does to its victims and legislation has been enacted, the first country to have done so. Sadly though, research shows that  legislation has not been strong enough as there is no competent enforcement agency to take action against perpetrators of bullying.

Country after country have reported the negative impact workplace bullying has upon the efficiency of the workplace organization and the long term health problems the victims suffer. Both of these problems then causes a huge financial drain upon each of the economies. Many countries have acknowledged that legislation is necessary to help combat this workplace problem but as we have seen with Sweden’s experience, a strong competent enforcement agency is also necessary.

In the UK, we have still got to persuade our policy makers to acknowledge that there is a problem with regard to bullying in the workplace and effective legislation is required to combat it. Next week let’s look at the reasons our policy makers have given for not implementing legislation contrary to our European counterparts.

Support the campaign to introduce legislation to protect workers against workplace bullying in the UK.

Protection for German Workers against Workplace Bullying

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In Germany the Ministry Of Labour and Social Affairs on its website page, “Bullying at Work” states,
Employers are obliged to protect their employees’ right of privacy and health. They must therefore prevent mobbing, act against employees who mob others and take all possible measures to prevent mobbing in their companies.”

The German Constitution provides protection of personality, honour health and equal rights of individuals. This is deemed to include the outlawing of bullying. The German Civil Code (GCC) provides a legal foundation for contractual liability and tort claims which can be extended to claims for bullying and stress at work.

In addition many businesses treat bullying as a violation of their collective work agreements and/or have implemented internal regulations to address work-related stress and harassment.
Within this general framework, there are three categories of bullying:
1. harassment that is not based on Protected Characteristics (called bullying or mobbing);
2. harassment that is based on Protected Characteristics; and
3. bullying as a criminal offence.
(www.internationallaborlaw.com/files/2013/01/Bullying-Harassment-and-Stress-in-the-workplace-A-European-Perspective.pdf

Isn’t it about time that the UK also treated bullying as a criminal offence regardless of any protected characteristics?

Next week the blog will look in detail at the legislation in Sweden to protect their workers. Sweden was the first country in the world to enact specific anti bullying legislation. Following that, the blog will summarise legislation in other countries around the world and look at the reasons why UK politicians have not accepted the Dignity at Work Bill to provide the workers in the UK the same protection.

Support the campaign to introduce legislation to protect workers against workplace bullying in the UK.

Spanish Legislation to Protect Workers against Bullying in the Workplace

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Spain

In Spain, the legal framework for bullying can be split into three categories:

  • bullying under Spanish civil law other than in relation to Protected Characteristics;
  • bullying in relation to Protected Characteristics; and
  • criminal liability for bullying.

 For this blog, I’m not looking at bullying in relation to Protected Characteristics as these people are protected under various legislation, including the Equality Act 2010. This Act  is based on the EU Equal Treatment Directives, which all EU member states had to transpose into law.

 Workplace bullying not based on Protected Characteristics

1. The Spanish Constitution – which guarantees “dignity” as an inalienable right, the “right to life, and the physical and mental (or moral) integrity” of every person and the right to privacy, honour,and respect of one’s image and reputation.

 2.The Law of the Statute of Workers gives all workers rights to their “physical integrity,” “privacy” and “due consideration for their dignity” including protection against abuse based on ethnic origin, religion, convictions, sickness, age or sexual orientation.

 3.The Law on Prevention of Occupational Risks and Rule 39/1997 on Preventative Services (RSP), and other health and safety regulations – which includes a broad duty for employers to maintain a safe workplace.

 In this context, the labour administration has adopted a code of practice on violence and harassment for the labour inspectors in charge of enforcing health and safety regulations which provides for the following general definition of bullying:

 “Where an unwanted conduct occurs with the purpose or the effect of violating the dignity of a person, and of creating an effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment” (Code of Practice for the Spanish Labour Inspectors on Bullying and Violence at Work 69/2009).

 4. The Code also establishes three basic elements constitutive of legal bullying:

 a)  the acts must be carried out with “the purpose or the effect” of violating the victim’s rights (demonstrating the bully’s intent is not required). As in France, therefore, under civil law, bullying does not require the bully to have the intent of bullying. Rather, there only needs to be a causal link between the conduct and the resultant harm (Spanish Constitutional Tribunal, 89/2005);

 b)  the behaviour creates an intimidating, hostile, degrading, humiliating, or offensive environment for the victim; and

 c)  the behaviour is repetitive and capable of harming the victim’s health (Tribunal Supremo de Justicia Galicia 30 May 2005, AS 1515).

 Criminal liability for bullying

In June 2010, bullying at work was codified as a criminal violation under Article 173.1§2 of the Spanish Penal Code. Specifically, the new law has made it an offense, punishable by imprisonment for between six months and two years for:

 “those working in the private or public sector takingadvantage of their superior position and performing against another person repeated hostile orhumiliating acts which without constituting degrading treatment involve serious harassment of thevictim”.

 The necessary elements of the criminal offense of bullying are:

  • repeated acts (this requirement has been further elaborated by case law);
  • hostile or humiliating;
  • that do not constitute degrading treatment, but represent a serious harm to the victim;
  • must be committed by a superior towards someone lower in the hierarchy (this excludes “horizontal” harassment where co workers or peers mistreat one another, or inverse vertical harassment where it is the supervisor who is the victim); and
  • intentionality is required (negligent harassment is not punished). However, there are questions as to the effectiveness of this new law, particularly given that criminal proceedings are very slow and generally last for a minimum of three years.

 Criminal sanctions specific to bullying include six months’ to two years’ imprisonment.

From the civil standpoint, in addition to damages the following remedies are available:

  • claims analogous to constructive discharge; and
  • an order to nullify any termination or other measures taken on discriminatory grounds.

 In addition to actions brought by bullied employees, employers run the risk of being sanctioned by the Spanish Administration itself where Labour Inspectors find that a worker’s dignity has been violated, including through acts of bullying. This may lead to significant fines ranging from €6,251 to €187,515 for violations of labour law and from €2,046 to €819,780 for infringement of health and safety regulations.

  Labour Inspectors may also initiate proceedings to impose a 30-50% surcharge of a

bullied employee’s Social Security charges if the harm suffered was caused “exclusively” by the performance of work. (Spanish Social Security Act, Article 115.2.e).

 Finally, bullying can lead to additional Social Security liability. An employer guilty of bullying is liable to be charged between 30-50% of an injured employee’s total disability subsidy for work related injuries that are due to the employer’s failure to properly mitigate risk.

 Some illustrative examples of workplace bullying in Spain

  • Spain’s Supreme Court ordered the municipal government of Coria to pay €4,500 in compensation to an employee who was forced to work in a basement, with neither daylight nor ventilation.
  • Spain’s Supreme Court ordered a tool company to pay €14,000 for “biased psychological pressure,” and another € 30,000 in compensation for psychological damages to an employee who was forced to do work that did not fall within his job description, and was below his qualification level.

 

 

 

Bullying in the Workplace DOC – International labor Law

Next week I will look at legislation in Germany.

Support the campaign to introduce legislation to protect workers against workplace bullying in the UK