Workplace harassment and how to protect yourself

There are many forms of workplace harassment, but they all have a common factor – they can all be considered as abuse. Therefore, workplace harassment includes situations when the employer denies the worker’s leave entitlement, or the worker is being mocked at work. There are also other ways of exclusion such as: denying the important information, uninforming about the meetings, avoiding communication and similar.

What is workplace harassment?

In the legal aspect, workplace harassment is defined in the following laws:

Law on Prevention of Harassment at Work (further: the Law)
Rulebookon the rules of conduct of employers and employees concerning prevention and protection from harassment at the workplace (further: the Rulebook)
Labour Law (further: LL)

The Law regulates the prohibition of harassment at work and related to work, whereas the harassment is defined as any active or passive behavior toward an employee or a group of employees of an employer that is repeated.

What are the consequences of workplace harassment, for an employee?

violation of dignity, reputation, personal and professional integrity
violation of health
violation of the status of the employee
causing fear or hostile, humiliating, or offensive business environment
deteriorating work conditions
leading to isolation of an employee or termination of the contract

The mentioned behavior is considered harassing if it is repeatedly directed toward an employee or the group of employees and it leads to some of the mentioned consequences.

The Law stipulates that the harassment considers also encouraging others to behave in that way.

Workplace sexual harassment

The Law also refers to cases of sexual harassment. If a person has been sexually harassed, the defined measures for prevention of harassment, the procedure of protection and all other procedures are conducted in the same way as for any other form of harassment.

According to the Labour Law, sexual harassment is defined as any verbal, non-verbal, or physical behavior aimed at or representing a violation of dignity of a person seeking employment or employee in the area of sexual life, causing fear or breeding adverse, humiliating or insulting environment.

Workplace harassment examples

Since sexual harassment is a form of workplace harassment it is unacceptable in the work environment. However, since the harassment is an abstract term the Rulebook defines it closely. Anyways, it should be emphasized that the forms of workplace harassment in the Rulebook are exemplary. Therefore it does not mean that the employer will not be prosecuted if a certain behavior is not mentioned in the Rulebook but fulfills conditions considered as workplace harassment. That is why at the end of each group the phrase „and other similar behaviors“ is added.

What are the typical cases of workplace harassment that are stated in the Rulebook?

behavior regarding the disrupted communication, intentional prevention of the employee to state his/her opinion, being yelled at, being threatened, insulted and any type of similar behavior;
behavior regarding the disrupted interpersonal relations: being isolated, ignored, being deprived of work equipment, blocked communication, withholding the information and the like;
behavior that can lead to an attack on personal dignity, such as negative comments on the personal life of the employee, insulting, spreading rumors, slander and the like;
behavior that can lead to violation of professional integrity of the employee, such as unjustified criticism, undermining the work results, giving tasks that are below the level of knowledge and experience of the employee, inadequate deadlines, exclusion from professional and educational programs and the like.
deliberate health impairment: being unjustifiably threatened with the termination of contract or dismissal, creation of stressful situations and the like.
behavior that is considered as sexual harassment – sexists comments, unwanted physical contacts, promotion or demotion that depends on the acceptance of sexual offers and the like.

What is not workplace harassment?

The rulebook mentions behaviors that are not considered as workplace harassment. These are the following cases:

A single act of the employer (decision, an annex of the employment contract, warning and such) that decides on the rights, obligations, and responsibilities specified in the employment contract. The employee is protected against it, according to the special law.
Restricting and hindering rights stipulated by the law, General Act or the employment contract. The employees’ protection is carried out in the procedure at the employer’s or the courtroom (e.g. not receiving salary or other bonuses, determining overtime work against the law, impeding the rights for days off, holiday and the like).
Work discipline that serves for better work organization.
The justified activities are taken to ensure safety and protect the health of the employees
Any unjustified differentiating between employees or discriminating against other employees, which is prohibited according to the Law on Prohibition of Discrimination.
Occasional opposite opinions, problems, conflicts regarding the work duties unless they are deliberately hurting or insulting the employee.

Who does Law on Prohibition of Discrimination at Work refer to?

The Law refers to:

the employer
the employee
state officials
persons engaged in work without an employment contract such as:
- casual employees
- commission and piece-rate employees
- employees on additional contract
- apprentices and trainees
- volunteers
- any other person who participates at work in some other way.

Therefore the discriminator can be one of the following persons:

an employer – legal person
a person in charge at work
an employee or a group of employees

The responsibilities of the employer regarding workplace harassment:

In order to protect the employees from harassment and provide adequate protection, the Law defines the following responsibilities:

informing the employee, in written form, before the employment about the prohibition of harassment at work and the responsibilities both employer and employee have in connection with the prohibition.
providing measures to protect employees from harassment at work
educating the employees to recognize harassment at work
the penalty the person in charge must pay to another employee who is facing harassment at work.

The responsibilities of the employee regarding workplace harassment:

Refraining from the harassing behavior
Refraining from the abuse of rights to protection against harassment. The abuse is done in the sense that the employee is aware or could be aware that there are no based facts for initiating the procedure for protection against harassment but still initiate it to attain some benefit for himself or some other person.

Who should workplace harassment be reported to?

The procedure of the protection against harassment at work depends on the perpetrator.

If the person-in-charge or the employer is accused of harassment, the employee may file an appeal for initiating the procedure directly to the employer. This is a possible action, but not obligatory, so the employee can immediately file a lawsuit at a competent court.
If the employee is accused of harassment, the mistreated employee is obliged to file an appeal for initiating the procedure of protection against harassment. The appeal is then delivered to the employer who must offer, within three workdays, mediation as the solution.

Mediation at the workplace is a peaceful way of solving the issue but is not mandatory.

Named requests must be elaborated and filed within six months from the date when the harassment was committed, including the day when the last abusive situation happened.

The mediation procedure

If the mediation is chosen, the parties choose their mediator. They can also choose a mediator from the list of people working at the employer’s, mediators organizations, or some citizens’ associations that are focused on facilitating or preventing the harassment.

The mediator must be impartial and independent since he/she is the person in trust for both parties. He/she helps parties to agree, but must not impose any solution. The way of mediating is urgent and is carried out in the way the parties have demanded, that is the way the mediator considers as right if the parties had not agreed. During the procedure, both parties may have a lawyer.

The mediating procedure can end in one of the following ways:

Locking a written agreement between the parties involved, if the mediating was successful. The agreement contains measures directed towards prohibiting harassing behavior.
After consulting the other parties, the mediator decides that the procedure is suspended, if the further proceeding is not justified.
A party writes up a statement on renouncing the further proceedings.

The procedure for establishing the responsibility of the employee

The mediation has failed if both parties do not determine the mediator, the mediator decides to suspend the procedure, or one of the parties leaves the procedure. In that case, if there is a based suspicion that the harassment has occurred or the right to protection from harassment has been abused, the employer must start the procedure for establishing the responsibility of the employee for violation of labor discipline.

If it turns out that the harassment has occurred, the employer may impose a warning, suspend the employee from four to 30 working days without pay, or transfer the employee to another work environment. If the employee repeats the harassing behavior within six months from the day the measures were imposed, the employer may terminate the employment contract.

Measures to prevent harassment before termination of proceedings

If the employee who considers himself subjected to harassment is also under the threat to his health, life, or irreparable damage, the employer must impose one of the following measures:

transfer to another work environment, to same or other tasks
paid suspension from work

If the employee does not comply, the employee who is harassed has the right to refuse to work and in that period receives the amount of previous three monthly salaries.

The judicial proceedings for workplace harassment

The judicial protection is provided with the judicial proceedings initiated by the lawsuit at the court. The Supreme Court is in charge of all proceedings within the work relations, while the local courts are in charge of the area where the work is executed.

The right for lawsuit have:

employees who were exposed to harassment from the employer or the person in charge. Deadline: 6 months from the day of the perpetrating.
employees who are not satisfied with the outcome of the protection against harassment. Deadline: 15 days from the day of the reaching decision that the mediation had failed. This proceeding is urgent therefore the competent court is obliged to decide within 15 days of receipt of the complaint.

The employee who thinks he/she has suffered from harassment may demand the following:

The determination that he/she has been subjected to harassment.
Prohibition of conduct which constitutes harassment, the prohibition of further performance of harassment or repeated harassment.
Enforcement of actions to remove the consequences of harassment;
Compensation for tangible and intangible damages, under the law
Publication of the judgment made in respect of the actions

During the judicial proceeding, the court can determine temporary injunctions such as restraining order or prohibiting access to the workplace area. This is done in order to prevent violent behavior or avoiding irreparable damage. The injunctions are determined by the suggestion of a party or by official duty.

How to prove that workplace harassment has occurred?

The employee, victim of harassment, does not resort to judicial proceedings since he/she thinks it is hardly proven. Sadly, the consequence is the continuation of the abuse and eventually leaving the job without any settlement while the abuser is left unpunished.

However, this is not a common situation. First of all, if the plaintiff (the harassed party) proves that the workplace harassment was even possible, the burden of proving is transferred to the defendant (the harasser) who then needs to prove that the harassment had occurred. That legal procedure makes it easier for the person who was subjected to harassment.

Finally, several pieces of evidence can be used in these proceedings to prove workplace harassment. Of course, the number and their quality vary from case to case. We will mention some of them: court statements from the plaintiff, written evidence such as e-mails, SMS/Viber/WhatsApp conversations, statements from the colleagues, or business files.

Lawyer’s role in the workplace harassment proceedings

These proceedings are complex in two ways.

First is the stress the harassed person faces during the proceeding, because of the court witnessing and facing the harasser. Because of it, the lawyer must prepare the client, so the client would go through the process with as little stress as possible.
On the other hand, it is recommended to hire a lawyer for workplace harassment, because he/she could assess what necessary steps would be best to undertake and what direction is the best to take. The lawyer can much more objectively oversee the available evidence and direct the proceeding in the direction that is desirable for the client.

Date: 16.04.2020.