International: Psychological harassment at the workplace - part two

In this, the second part of our feature on psychological harassment at the workplace, we look at the situation in a further four countries: Germany, Greece, Ireland and Italy. See International: Psychological harassment at the workplace - part one for the first article in this series.

Germany

Definitions

The labour ministry and some social partner organisations provide definitions of "mobbing", as moral or psychological harassment, or bullying, is called in Germany (and in a number of other European countries). This phrase borrows the term used by the ethologist Konrad Lorenz, winner of the 1973 Nobel prize in medicine, who used it to describe attacks from a group of smaller animals threatening a larger animal.

The BDA employers' organisation refers to the "systematic and malicious behaviour of one employee against another". The IG Metall metalworkers' union highlights the "massive psychoterror that small groups of employees exert, usually against an individual".

Statistics

In the European Foundation's third survey of working conditions in the European Union1, 7% of German workers considered that they were victims of harassment, or bullying, at work (compared with the European average of 9%). A landmark judgment on a case of mobbing (see box below) cited a figure of 1.5 million victims of psychological harassment.

The findings of the most recent and comprehensive survey carried out by members of the social research body Sozialforschungsstelle Dortmund2 for the German government show that over a period of one year (2000), 5.5% of employees were victims of psychological harassment at the workplace. However, 11.3% considered themselves to have experienced this type of behaviour on at least one occasion - which equates to more than one in 10 members of the workforce.

Certain factors were shown to increase the risk of being bullied - particularly sex and age, and especially both in combination. For women, the risk of being mobbed was 75% higher than for men: at the time of the study, 3.5% of employed women reported it, compared with 2% of employed men. Overall, 58 out of 100 employees reporting being bullied were women, while 42 were men.

Costs incurred

Experts estimate that the effects of psychological harassment on the German workforce cost the economy between €15 billion and €50 billion a year in total, with the cost to individual businesses estimated at between €25,000 and €50,000 a year for each single case.

Other initiatives

In 2002, a helpline was set up in the western federal state of North Rhine Westphalia that offers victims a range of help, support and advice. There are also advice lines in the states of Hamburg and Hesse, as well as one offered nationwide by the labour ministry. The IG Metall metalworking union provides a large amount of information on its website and there are several other internet sites offering advice and support. Links to many of these may be found via www.mobbing-abwehr.de/, which also includes links to sites in Switzerland.

Legislation

There is no dedicated legislation on the issue of moral harassment at the workplace, and the government does not have any plans to introduce any. At present, this type of behaviour is covered under several other laws, including the basic law (Grundgesetz) and the works constitution Act (Betriebsverfassungsgesetz).

One important development, however, has been the introduction of compensation payment to victims of bullying and sexual harassment at work. The new rules came into force on 1 August 2002 and allow victims to claim against their employer, if it has failed to do all in its power to limit and prevent this type of behaviour. Previously, victims could only be awarded damages in cases where the employer was also the harasser - in the first such case, a bank manager in the western federal state of Rhineland Palatinate was awarded DM15,000 (€7,500) against his superior in September 2001. There have not yet been any damages awarded under the new rules.

National, collective or company agreements

The German federation of trade unions (DGB) and the metalworking union (IG Metall) provide a model company agreement (Betriebsvereinbarung) for works councils to adopt as regards equal treatment of employees. This is in the context of the transposition of the European equal treatment Directive (European Communities: New equal treatment Directive), which Germany plans to implement into national law by the middle of 2003. Accordingly, some company agreements on equal treatment of employees also contain clauses relating to mobbing - see the box below. They are all accessible on the IG Metall website, at: www.igmetall.de/betriebsraete/betriebsvereinbarungen, as is the model agreement.

Fatalities

Roughly 10% of all suicides are estimated to be caused by psychological harassment at work.

Greece

Definitions

There are no definitions provided by social partners or the government as to what constitutes bullying at the workplace.

Statistics

In the third survey of working conditions in the European Union1, 5% of Greek employees reported that they were victims of harassment, or bullying, at work (compared with the European average of 9%).

Costs incurred through absence from work on account of harassment

There are no estimates of the costs incurred to employers or to the health system through absence from work on account of illness caused by workers being harassed at work. (Indeed, in Greece, there are no data collected on the costs of occupational accidents and disease.)

Legislation

There is no legislation directly relating to bullying at work. Indirectly, however, the Civil Code contains provisions relating to the protection of the individual and resulting restrictions regarding insulting behaviour and the abuse of employees' rights. In cases of harassment, reference may also be made to the basic rights incorporated into clauses in the Constitution which relate to the protection of human values and the value of human beings. The Constitution is the 1975 Constitution of the Third Hellenic Republic, which has been amended twice, in 1985 and 2000.

The Civil Code was first adopted in 1940, and reintroduced in 1946 after the end of the second world war. Since then, there have been minor amendments, but these have not related to the articles that provide a legal basis for dealing with cases of bullying. The relevant articles are as follows:

  • Article 57 concerns the individual's right to demand that insulting behaviour be corrected. In such cases, compensation is not excluded.

  • Article 281 concerns the abuse of rights. It forbids the exercise of rights beyond limits set by good faith, civil ethics or the social and economic objective of the rights.

  • Article 662, concerning the safety and health of workplaces, according to which the employer is obliged to provide appropriate working conditions and a working environment that protects the life and health of employees.

    While most case law is based on the above, in the absence of any specific anti-harassment legislation, that relating to occupational safety and health and unfair dismissal may also be used.

    Other initiatives

    There are no national sectoral or company agreements, nor has there as yet been any national debate on the issue of harassment at work. The government and the social partners do not appear to view psychological harassment at work as a priority issue. However, an occupational health and safety (OHS) expert interviewed by EIRR said that professionals are keen for the EU to initiate action in this area.

    Ireland

    In September 1999, the labour ministry set up a 10-person multipartite taskforce on the prevention of workplace bullying. The taskforce was given three aims in its terms of reference, as follows:

  • to identify the size of the problem and the sectors most at risk;

  • to develop practical programmes and strategies to prevent workplace bullying; and

  • to produce a coordinated response from state agencies, and report to the labour minister.

    Definitions

    In line with the definition recommended by the taskforce, the health and safety authority (HSA) and the employment ministry define "workplace bullying" as follows:

    Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual's right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a one-off incident, is not considered to be bullying.

    Other organisations providing definitions of bullying behaviour include the Irish Business and Employers Confederation (IBEC), the Association of Secondary Teachers Ireland (ASTI), the Irish Congress of Trade Unions (ICTU), the civil service, the Health Service Employers Agency (HSEA) and the Irish Nurses Organisation (INO).

    Statistics

    In the third survey of working conditions in the European Union1, 10% of Irish respondents considered themselves to be victims of harassment, or bullying, at work (compared with the European average of 9%). There have also been two important national studies (see the box below).

    Legislation

    The above-mentioned taskforce gave "serious consideration" to the issue of enacting new, or amending dedicated anti-bullying legislation. However, it concluded that, as the existing legislation (principally the Safety, Health and Welfare at Work Act 1989 -EIRR 181) was comprehensive in its application, it would be premature to expand the code of labour law before all concerned were satisfied that it had reached the limit of its effectiveness.

    Under the 1989 Act, the employer has a general duty to ensure the safety, health and welfare at work of all its employees. Case law indicates that this includes the protection of employees' psychological health. Sexual harassment is specifically outlawed as unlawful discrimination under s.23 of the Employment Equality Act 1998 (EIRR 294). For the purposes of the 1998 Act, any move towards physical intimacy, any request for sexual favours or any other conduct (including spoken words, gestures or the production, display or circulation of written words, pictures or other material) constitute sexual harassment if the act, request or conduct is unwelcome and could reasonably be regarded as sexually offensive, humiliating or intimidating. Similarly s.32 of the 1998 Act outlaws harassment on eight more discriminatory grounds (marital status, family status, sexual orientation, religion, age, disability, race, and membership of the travelling community).

    Codes of practice or non-legislative guidelines

    The taskforce felt that drawing up codes of practice (COPs) would be a useful first step in tackling the issue as these would offer practitioners valuable guidance in establishing anti-bullying policies and procedures and would be admissible as evidence. It therefore recommended drawing up COPs under the Industrial Relations Act 1990 (EIRR 193), the Safety, Health and Welfare at Work Act 1989 and the Employment Equality Act 1998.

    The Labour Relations Commission's COP (Statutory Instrument SI no.12/2002) sets out, for the guidance of employers, employees and their representatives, effective procedures (both formal and informal) for addressing allegations of workplace bullying. The HSA's COP provides guidance to employers on identification of the risk of bullying in the workplace and recommends the introduction of an effective anti-bullying policy. The Equality Authority's COP (SI no.78/2002) gives practical guidance to employers as to what is meant by sexual harassment and harassment in the workplace, and how it may be prevented.

    National, sectoral and company agreements

    There are no national or sectoral agreements relating to an anti-harassment policy, but the social partners were represented on the taskforce and were consulted by the Labour Relations Commission prior to the issue of its COP. Additionally, the finance department's document on a positive working environment (issued in May 2002) details civil service policy on harassment, sexual harassment and bullying.

    Other initiatives

    In 1998, IBEC issued guidelines on harassment or bullying at the workplace to assist employers in identifying and dealing with this issue. In September 2001, nifast (consultants and trainers in health, safety and risk management) held a conference on bullying in the workplace in Dublin. Research carried out by the INO led to the health service employers devising an anti-bullying policy.

    Italy

    Awareness of harassment is not yet very widespread in Italy, although the number of cases is steadily increasing. Political opinion on how to deal with it tends to divide along party lines, with the centre left favouring collective bargaining and arbitration, and the far left favouring sanctions and compensation. The centre right, and, indeed, the Confindustria employers' association, is cautious about seeking legislative solutions.

    Definitions

    In Italy, as in Germany, bullying is known as "mobbing", and although there is growing awareness of its existence, neither the social partners nor government ministries have yet provided definitions of this type of behaviour.

    Statistics

    In the third survey of working conditions in the European Union1, 4% of Italian employees - or roughly 1.5 million workers - reported that they had been victims of harassment, or bullying, at work (compared with the European average of 9%).

    Research carried out by a team specialising in psychological research (Gruppo di studio e ricerca sul mobbing), which is part of the ISPESL health and safety institute, found that 52% of victims of bullying were men. Of these, 62% were aged between 51 and 60, 31% between 41 and 50, and 7% aged between 31 and 40. Marital status was found to be a significant factor, with 81% of victims married and 11% single. The majority (71%) have a high-school diploma, 20% have a university degree and 9% hold an intermediate school leaving qualification (secondary school). White-collar employees accounted for 81% of victims and 19% were managers. Most worked in the service sector (79%), while 21% worked in the manufacturing industry.

    Legislation

    There is no specific anti-harassment legislation, but articles in the Constitution, the Civil Code, the Workers' Statute and the Criminal Code give protection to workers, as do special regulations. Some of these also allow for sanctions and compensation for damages. There are a number of Bills on the issue which are being discussed in the senate, but it is not possible to predict when they will become law - if at all. The previous parliament was unable to pass any ad hoc legislation.

    The relevant articles in the Constitution that may be used by victims of harassment are as follows:

  • Article 32 protects a person's wellbeing.

  • Article 41 protects human freedom and dignity in the exercise of economic activity, in both the public and the private spheres.

    The Civil Code offers the following possibilities:

  • Article 2087 states that the employer, in the running of the enterprise, must adopt adequate measures as necessary to protect the physical integrity and moral personality of employees, according to the specific nature of the work, experience and techniques. As regards the employer's behaviour, this article may be interpreted to mean that employers must not behave in a bullying way and that the employer also has a duty to ensure that their employees do not behave in this way towards each other.

  • Article 2043 refers to the extra contractual responsibility of those who commit psychological violence.

  • Article 2013 provides that the victim of mobbing must carry out the task for which he was hired, or tasks similar to those recently performed, with no reduction of pay.

    The Workers' Statute (Law 300/70) contains more specific measures, although they do not refer directly to bullying:

  • Article 13 protects the workers from being asked to perform demeaning tasks.

  • Article 15 outlaws discriminatory actions.

    There are also a number of legislative decrees:

  • Legislative decree 626/1994 deals with safety at work. Article 3 provides for general protection measures and article 5 deals with workers' duties. The latter states that each worker has a duty of care both with regard to their own safety and health and that of other people at the workplace, on whom their actions or omissions might have an impact, according to their education and instruction and the means supplied by the employer.

  • Legislative decree 38, of 23 February 2000, that introduced INAIL insurance protection. It stated that psychological harassment could produce physical harm. However, under article 10, the employee has to prove that any injury sustained has been caused at work. This is often very hard since evidence may be scarce and colleagues are not always very sympathetic.

    Additionally, as devolution has progressed, some regional regulations now exist. For example, a law passed for the Lazio region in June 2000 contains provisions to prevent and control bullying at the workplace.

    The Criminal Code contains articles 582, 583 and 590, allowing for imprisonment for the crime of inflicting harm on someone that results in mental or physical injury, depending on the seriousness of the harm inflicted. If the illness lasts not more than 40 days and there are no aggravating circumstances provided for by article 583 (which could result in up to 12 years' imprisonment), the crime may be punished under labour legislation.

    National, sectoral and company agreements

    The transport sector national agreement provides a definition of psychological harassment and allows for victims of bullying, sexual harassment or discrimination on the grounds of sex, religion or race to take their case to their line manager, the human resources department of the enterprise, a representative from the local trade union, or the equal opportunity commission.

    These designated parties are obliged to assist the victim in presenting their case to an ad hoc commission set up at company level, a so-called "climate committee". This is a joint committee formed from three management representatives and three representatives from the recognised union(s) at the company. The chair of the committee must be a former magistrate and is jointly appointed by the committee. The committee is empowered to request specialist psychological assistance if necessary. All decisions must be majority decisions.

    The company may then adopt all necessary measures and impose, if necessary, disciplinary sanctions provided for in the existing legislation for violation of the rules or for false accusations. If it chooses not to follow the recommendations of the committee, it is obliged to explain its reasoning. Both the company and the employees maintain their right to take legal action in court.

    Other initiatives

    The National Action Plan on employment presented in May 2002 by the government allows for the government to take action along the lines of the measures presented in September 2001 in the White Book on the labour market presented by the welfare ministry (EIRR 334). Details are available at: www.minwelfare.it.

    The UIL union confederation has set up a bullying website at: www.uil.it/mobbing, and it also organises regional seminars and conferences on the issue.

    There is also a mobbing website at www.mobbingonline.it - with a link to the Italian association against mobbing and stress (PRIMA) (www.mobbing-prima.it).


    Landmark ruling in German court

    In April 2001, the labour court of the eastern state of Thuringia passed a landmark judgment on a case of psychological harassment. A senior employee at a bank had been required to undertake "pointless and unfulfillable tasks" and had been "warned" on several occasions. He had been temporarily suspended and was eventually demoted to a position that was six salary levels below his former post. The court ruled that the employer had deliberately tried to force the employee to resign by perpetrating systematic psychological harassment.

    The judgment also clarified what behaviour is defined as "mobbing" in the eyes of the law, and set a precedent for dealing with further cases, providing 14 general principles for fair and just procedures in the future. Key points include the employer's obligation to protect employees from violations of their personal rights or "space" (Persönlichkeits- und Freiheitssphäre) - regardless of whether the harasser is another employee, the employer itself, or a third party with whom the employer is involved in a contractual relationship. Victims will in future be guaranteed the opportunity to tell their story. In the past, they have often never had a chance to explain what has happened since they are usually unable to offer any proof of the allegations.


    Anti-bullying company agreements in Germany

    One of the first such agreements was signed at Volkswagen and took effect from 1 July 1996. It highlights the need for "partnership" (partnerschaftliches Verhalten) to create a positive working environment, outlawing sexual harassment, bullying and all types of discrimination. It allows for harassment victims to take their complaints to certain designated parties, including the works council, the human resources department and the company health service, and guarantees victims' confidentiality.

    A range of punishments for the harasser is envisaged, including a caution or a fine, or, in more serious cases, dismissal. The agreement also allows for a programme of seminars and training for employees, in particular for staff with responsibility for employee wellbeing.

    Other agreements concerned with bullying at work include the following:

  • an agreement on better communication and partnership that came into force in December 1998 at the biotechnology, mechatronics and environmental technology company Sartorius;

  • an agreement on equal opportunities and mutual respect, dating from June 2001 at the automobile manufacturer Opel; and

  • an anti-discrimination and equal treatment agreement signed on 30 November 2001 at the galvanising plant Feuerverzinkerei Vogt & Müller GmbH.

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    Cases brought in Greece

    All cases to date have related to the employer's abuse of rights and, as such, intimidating behaviour and infringement of the individual's rights have either been considered as de facto termination of contract by the employer or as unfair dismissal - there have been no cases relating to one employee harassing another. Unfair dismissal cases are dealt with under Law 2112/1920 on dismissal and separation.

    In rare cases, however, the focus of the prosecution has been on the alleged violation of an individual's dignity, and these cases have been brought under articles 57 and 281 of the Civil Code.


    Surveys in Ireland

    Anti-Bullying Research Centre, Trinity College, Dublin

    Just over 1,000 people took part in a survey carried out by the centre, and jointly funded by the Health & Safety Authority. The report was published in February 2001. Almost half of the respondents (41.6%) considered themselves to have been victimised at work, while 14.4% indicated that they had been, or continued to be, frequently bullied.

    Marital status appeared to play a part, with both unmarried employees and widowed females reporting higher levels of victimisation. Similarly, those who received part of their remuneration in the form of a bonus reported higher levels of frequent bullying.

    The incidence of harassment varied according to the nature of the workplace, with those working in central and local government reporting the most cases. Other problem areas highlighted included clothing and textiles, engineering, health and education.

    As for how many people were harassing the victims, while 38.5% reported that they were bullied by two or more people, the remaining 61.5% named one person as the culprit (35% naming a man, 26% naming a female). Almost three-quarters of the respondents (70.6%) reported that they were bullied by a superior, and 32% reported bullying by a person or persons at the same level. By comparison, only 8.4% reported that they had been bullied by subordinates.

    Economic and Social Research Institute (ESRI)

    The labour ministry's multipartite taskforce on the prevention of workplace bullying commissioned the ESRI to conduct a national survey to identify the size of the problem. Over 5,000 people took part, and the results found that 7% of those working had been bullied in the preceding six months, with women 1.8 times more likely to be victims.

    In terms of age, this survey found that slightly more persons in the 26-45 age group were bullied. There was no particular variation by social class, but incidence was greater among those who had higher educational attainment. Sectorally, bullying was more common in the major public sector areas of public administration and defence (14%), education (12%) and health/social work (10%). The lower levels were in transport/communication (5.4%), retail/wholesale(5.3%) and construction (3.4%).

    Most bullying took the form of verbal abuse and insults (81%), although 1.8% of the respondents reported physical abuse and 3.3% reported being sexually harassed. Sexual harassment was higher among women, but 1.5% of men reported sexual harassment. Most of the alleged bullies were either one single colleague (42%) or one single superior/manager (45%), with 13% being bullied by a group of colleagues. Most males were bullied by other males (82%), while 40% of females were bullied by males and 55% by other females. Of those who had been bullied in the past six months, 20% suffered from daily abuse, 19% had problems several times a week, 22% were bullied several times a month and 30% were bullied "only occasionally".


    Cases brought in Ireland

    The leading case concerns a fireman, Michael Shanley, who was bullied by his superior officer over an eight-year period to the extent that he became suicidal. Mr Shanley sued his employer in the High Court, claiming damages for personal injuries. His evidence was that his relationship with his superior was one of intimidation, humiliation, undermining and attempting to isolate him from his colleagues. He was subjected to frequent abuse, obscenities, open aggression, threatening behaviour, excessive criticism over minor things and being made to repeat demeaning jobs. In October 2001 he was awarded IR£65,000 (€82,532.90) of which IR£50,000 was for past "pain and suffering" and IR£15,000 was for future "pain and suffering".

    There have also been a number of cases in which employees have resigned following harassment and/or bullying and have subsequently claimed to have been constructively dismissed and sought unfair dismissal compensation (or, where the harassment is sexual, compensation under the Employment Equality Act 1998). For example, in one case, in August 2001, the Employment Appeals Tribunal found that the claimant had been subjected to continuous harassment and bullying and that she was effectively isolated at work - which undermined her confidence and health to such a degree that she could no longer tolerate her working environment and was left with no other option but to resign. She was awarded IR£70,500 compensation (which included future financial loss). This case, together with her associated personal injury claim, was ultimately settled on appeal.

    One of the most recent cases concerns an investment director at ICC Venture Capital, now owned by the Bank of Scotland. Prisca Grady alleged that she had been sexually harassed and bullied and also alleged incidences of financial impropriety at the bank. In the end, the bank settled the case out of court, but it did not pay legal costs or compensation, instead paying Ms Grady €300,000 - which represented bonuses she would have received had she not resigned.

    As well as the civil law liability with regard to bullying and/or harassment, the perpetrators may also be subject to criminal law. In a case in February 2001, three workers, who described their action in assaulting a co-worker by putting an air hose to his posterior as "a common prank", were each sentenced to 18 months' imprisonment.


    Cases brought in Italy

    There have been cases brought under the legislation outlined in the text, and some judgments have recognised the right to compensation for harm inflicted on the victim through sexual harassment or bullying - whereby it may be both contractual and extra-contractual. Where an employee can demonstrate the cause and effect between the employer's persecutory behaviour and physical harm or psychological stress, there have been judgments in favour of the employee. This is often, however, very hard to prove, and colleagues are not always supportive of the victim.

    Other judgments have recognised the employer's right to implement organisational change, which should not, however, result in changing the type of work carried out to the detriment of the employee's wellbeing. Examples of this type of change include enforced inactivity, having to carry out demeaning tasks, logistical and physical marginalisation - all of which may result in a lowering of the employee's status.

    One unusual case regarded a worker who had carried out the tasks for which he was hired for three years, but then was left idle for 16 years, while continuing to receive the same pay. On 5 October 2001, the high court of appeal recognised the right of workers to be awarded damages on the basis of the principle that denying or preventing them from carrying out tasks damages the basic right of workers to express themselves freely.

    1Pascal Paoli and Damien Merllié, "Third European survey on working conditions 2000", European Foundation for the Improvement of Living and Working Conditions, Luxembourg, 2001.

    2Bärbel Meschkutat, Martina Stackelbeck and Georg Langenhoff, "Der Mobbing-Report. Repräsentativstudie für die Bundesrepublik Deutschland", Bundesanstalt für Arbeitsschutz und Arbeitsmedizin, Dortmund, 2002.