UMR 5114 CNRS – University of Bordeaux – France

UMR 5114 CNRS – University of Bordeaux – France

2013 JILPT International Seminar on Workplace Bullying and Harassment

Tokyo, February 27, 2013

Loïc Lerouge

Workplace Bullying and Harassmentin France and Few Comparisons

with Belgium: a Legal Perspective

UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal PerspectiveLoïc Lerouge

Tokyo – Japan – February 27, 2013

Reminder

Framework Directive dated 12 June 1989: General Obligation of Prevention (Health and Safety Act of 31 December 1991)

CJEC 15 November 2001 Commission c/ Italy: "Every risk must be prevented"

Question of the reach of the general obligation of prevention through the strict obligation to ensure health and safety

FRANCE BELGIUM


1998

Marie-France Hirigoyen,, Le harcèlement moral. La violence perverse au quotidien, Éditions La Découverte et Syros, Coll.

Pocket, 1998, 252 p.

This book triggered a vast public debate in France, by describing a phenomenon that workers were aware of but unable to put into words




• Two draft laws proposed by Georges Hage in 1999 (Assemblée Nationale) and Roland Muzeau in 2000 (Sénat)

• CES (Michel Debout) report

• One of the major issue was whether the concept of "mental health" should be introduced into the French Labour Code or not

Social Modernization Act dated 17 January 2002instituting a legal provision to combat moral harassment at work




1. Moral Harassment under the regime of the Social Modernisation ActUnder the regime of the Wellbeing Act in Belgium

2. Some Case Laws which precise the Moral HarassmentWhat about Belgium?

3. Penalties

Three PARTS



and a comparison with Belgium in the same time


Art. L. 1152-1 Labour Code

"No employee shall suffer repeated actions which have for object or for effect a degradation of his working conditions likely to violate his rights and his dignity, to alter his physical and mental health or to compromise his professional future"

Definition of moral harassment in the Labour Code (+ Criminal Code and Public Service)

new progress relating to occupational risks, in particular through the consideration of the phenomenon of bullying and professional legal recognition

Compensation of the effects of Moral Harassment

Social Security Law

1. Moral Harassment under the regime of the Social Modernisation Act




Social Modernization Act: définition (art. L. 1152-1 CT)

+• Employer general obligation of prevention: the employer has to take

the necessary measures to ensure safety and protect the physical and mental health of workers (art. L. 4121-1 CT) + to take into account moral harassment in a coherent prevention plan (art. L. 4121-2 CT)

• Moral harassment: the employers have to take all necessary measures to prevent moral harassment (art. L. 1152-4 CT)

The employer has also to display the provisions relating to moral harassment and the penal santions (art. 1321-2 CT)

Labour Law: beyond provisions relating moral harassment




• Health and Safety Committee: contribute to the protection of the physical and mental health of workers in the establishment, including those employed by outside firms (art. L. 4612-1 CT).

• Occupational Physician: may propose that the employer provide individual accommodation measures for workers whose mental health requires special care (art. L. 4624-1 CT)

• Worker Representatives: have a "right to act as whistleblowers". If they witness, or are informed by an employee, that, in the workplace, there is a violation of human rights, the right to physical or mental health, or individual freedoms that is not justified by the type of work, nor by the intended objective, they must immediately inform the employer (art. L. 2313-2 CT)




• Article L. 1222-1 of the Labour Code: contracts must be performed in good faith

• In application of this principle, employers must implement measures to protect workers' health, to ensure that their health is not altered by the acceptance of the contractual employment relationship

• From the standpoint of moral harassment, it strengthens the mobilisation of the courts concerning the requirement that the employment contract has to be performed in good faith




• The employee who complaints about moral harassment has to establish the facts which support the presumption that harassment has occurred (art. L. 1154-1 CT)

• It is then up to the defendant to prove that the actions that led to the complaint did not constitute harassment and that the decision was justified by: "objective elements that had nothing to do with harassment" (art. L. 1154-1 CT)

• The judge then forms his own opinion and may order each step to investigate the situation in order to take a decision

The question of the Burden of Proof




• Protecting workers and facilitating the report of moral harassment incidents

• Employees may not be penalised, dismissed, or subjected to discriminatory measures for being or refusing to be subjected to repeated instances of moral harassment, or for being witness of or reporting such actions (art. 1152-2 CT)

• The article L. 1152-3 CT cancels any termination of an employment contract due to a lack of knowledge of the definition of moral harassment at work or of the protective measures applicable to employees under these circumstances

The immunity of employeeswho denounce moral harassment

Art. L. 1152-2 CT




• Protecting workers and facilitating the report of moral harassment incidents

• Employees may not be penalised, dismissed, or subjected to discriminatory measures for being or refusing to be subjected to repeated instances of moral harassment, or for being witness of or reporting such actions (art. 1152-2 CT)

• The article L. 1152-3 CT cancels any termination of an employment contract due to a lack of knowledge of the definition of moral harassment at work or of the protective measures applicable to employees under these circumstances

The immunity of employeeswho denounce moral harassment

Art. L. 1152-2 CT




• Procedure initiated by any person in an enterprise who considers being victim of moral harassment or by the person accused of that action

• Aim at reconciling the parties when the circumstances related to moral harassment occurred in the workplace, "bringing together the parties"

• Procedure perceived as an innovation, but no much used

The Médiation Procedureart. L. 1152-6 CT






Law of 11 June 2002 on protection from violenceand moral or sexual harassment at work

• Burden of proof is the same than in France, it is up to the defendant to prove that abuse or moral or sexual harassment at work did not take place

• A legal definition without specific tools in Belgium

Culture of médiation stronger in Belgium => less litigations

The Belgian law on moral harassment at work focuses on three points: (1) prevention, (2) the actions open to the victim, (3) measures for protecting workers who report that they have been victims of harassment




Definition of the law of 2002 insertedinto the law dated 4 August 1996 on wellbeing at work

Article 32(iii) defines moral harassment as: "several abusive acts, which may be similar or different, external or internal to the company or institution, that continue over a period of time, with the aim or effect of violating the personality, dignity, or physical or psychological integrity of a worker or another person (…), in the performance of their work, jeopardising their employment, or creating an intimidating, hostile, degrading, humiliating, or offensive environment, manifested, in particular, by words, intimidations, actions, gestures, or written texts. These behaviours may be related, in particular, to religion or other beliefs, handicaps, age, sexual preferences, gender, race, or ethnic origin". This last sentence integrates "discriminatory harassment", which was not included in France until 2008.

Employers must implement the necessary measures to promote the workers' welfare in the performance of their work. They must apply a general prevention policy for that purpose, particularly by introducing measures aimed at combating violence and moral or sexual harassment in the workplace




• In Belgium, employers must appoint a prevention adviser specialised in psychosocial aspects of work, including abuse and moral or sexual harassment at work.

• A comparison with the French system on this point reveals a weakness due to a lack of specialists trained in psychosocial risks, especially in the Health and safety committee.

Employer can also appoint an external prevention adviser for reinforcing their action.

• Enterprises with fewer than 50 employees must call on external prevention adviser services




• With the agreements of all the Health and Safety Committee members, the employer can appoint “trustworthy people”

• The task of trustworthy people is to support the prevention adviser in the fight against violence, harassment and sexual harassment at work

• Their presence and involvement in the search for a solution informally help to limit the number of substantiated complaints and resolve harassment situations


The employer cannot be exonerated from his liabilityeven if they have implemented measures to prevent

harassment or applied penalties to offenders

Strict Obligation to Ensure Health and Safety at WorkCass. soc. 28 feb. 2002; Cass. AP 24 June 2005

Key role of the Courts

Even if other factors than the fault of the employer contributedto the prejudice; i.e. fault of the employee;

The Court of Cassation held the employer liable for the actionsof his subordinate towards the victim

The Court of Cassation considers that these actions should not have come true

2. Some Case Laws which precises the Moral Harassment




Moral Harassment andStrict Obligation to Ensure Health and Safety

"Propara" case on 21 June 2006

• Quite remarkable ruling

• The employer is in charge of an obligation to ensure safety regarding protection of the health and the safety of the workers in the company, in particular regarding moral harassment and the absence of fault of its part cannot exempt him from his liability

The employer's obligation of results in this matter, thus paving the way for integrating mental health as well as physical health in the employer's obligation of results to ensure the workers' safety




• An employer who takes no action although he is aware that an employee is responsible for moral harassment of a subordinate may be ordered to pay damages for "disloyal non-performance of the employment contract" Cass. soc. 7 February 2007

• An employer may be liable for a breach of an employment contract if he has not taken the necessary steps to prevent moral harassment of one worker by another Cass. soc. 21 February 2007




Cass. soc. 10 november 2009

The Court of Cassation confirmed that moral harassment could occur without malicious intent of the perpetrator

Two rulings:The court's interpretation went beyond moral harassment. The courts extended this legal instrument, intended to combat a phenomenon considered "perverse", to cover the employer's ability to organise and manage the workers

The Court of Cassation considered that some management methods used repetitively could constitute "moral harassment".Is article L. 1152-1 of the French Labour Code, on the legal definition of moral harassment, the appropriate legal tool for stopping certain types of work organisation? Moral harassment does not cover every situation




Cass. soc. 3 february 2010Two rulings:Once again, the Court of Cassation based its ruling on the employers' general obligation of prevention (article L. 4121-1 of the French Labour Code)

The employer was liable when an employee was victim of physical or moral abuse in the workplace, including moral or sexual harassment,

even if measures had been implemented to stop these actions

Thus, employers must implement measures to prevent or avoid any action likely to be a risk for the mental health

The objective is to encourage employers to implement effective policies to prevent psychosocial risks in their companies to avoid liability under this heading






The Courts in Belgiumhighlights the harassment factors that have

an influence on the occurrenceof the problematic situation

Those risk factors are organizationalcommunication problems, insufficient monitoring of decisions, confusion

of roles, heavy workload, unequal distribution of tasks, inadequate training, restructuring

The repetition of actions is requiredThe malicious intent of the perpetrator also even if it is not a legal

requirement for recognizing moral harassment


3. Penalties Cass. soc. 6 June 2012

• The employees victims of moral harassment can be indemnified twice

• The victim can accumulate a compensation for the undergone actions and a compensation for negligence of the employer in his obligation of prevention

• The victim must prove the two damages

• Besides labour law, the Social Modernisation Act instituted specific criminal provisions in the Criminal Code

• The same legal definition

• Since the reform of August 6, 2013, the article 222-33-2 punishes Moral Harassment by a penalty of:

Two years imprisonment + 30,000 Euro fines Eight days of imprisonment and 2,751 Euros fines / One year and 5,500 Euros Fines

(Belgium)




• Didier Lombart was the President of France Telecom during the series of suicides

• He and two of his Directors (Olivier Barberot and Pierre Wenes) has been summoned by an examining magistrate ("Juge d'instruction", judge who heads the criminal investigation)

• Serious and concordant indications concordant they participated as perpetrator or accomplice the commission of a criminal offence (art. 82 Criminal Procedure Code) : they endangered life of others

• In December 2009, based on the Labour Inspector report, a trade-union (SUD-PTT) sued the head of France Telecom with a criminal complaint about the establishment of an institutional moral harassment leading to "endangering the lives of others" (art. 223-1 Criminal Code)

What about the indictment of the former president of France-Telecom?

Not a "Collective Harassment"

Harassment deals with individual cases

Reinforcing the criminal WayEndangering the lives of others, incitement to commit suicide, involuntary

homicide, submission to degrading working conditionsBetter cooperation between Labor Inspection and prosecutor



Université Bordeaux IV, avenue Léon Duguit, 33608 Pessac cedex, FrancePhone: 33 (0)5 56 84 85 42 - Fax: 33 (0)5 56 84 85 12

email: [email protected]: http://comptrasec.u-bordeaux4.fr

Contact: Loïc [email protected]

Phone: 05 56 84 40 52


THANK YOU FOR YOUR ATTENTION!ALIGATO GOZAÏMASU!

http://comptrasec.u-bordeaux4.fr/

http://comptrasec.u-bordeaux4.fr/

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UMR 5114 CNRS – University of Bordeaux – France