Spanish Legislation to Protect Workers against Bullying in the Workplace

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.

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