Workplace Bullying and Harassment

New Developments in International Law

Ellen Pinkos Cobb

• Editorial: Routledge
• Año: 2017
• ISBN:
  9781315468877
• Edición: 1
• Categoría: Betriebswirtschaft
• Categoría: Personalmanagement

Workplace Bullying and Harassment: New Developments in International Law provides a comprehensive tour around the globe, summarizing relevant legislation and key developments in workplace bullying, harassment, sexual harassment, discrimination, violence, and stress in over 50 countries in Europe, the Asia Pacific region, the Americas region, and the Middle East and Africa. Workplace bullying, harassment, and other psychological workplace hazards are becoming increasingly acknowledged and legislated against in the modern work world. The costs of bullying, harassment, violence, discrimination, and stress at work are huge and far-reaching. Frequently under-reported and misunderstood, workplace bullying, harassment, violence, discrimination, and stress wreak havoc on the vitality and prosperity of organizations and individuals alike.

Workplace laws have long dealt with physical risks, and psychological risks have begun to be treated similarly. In response to the changing workplace, many countries are regulating workplace bullying and harassment by introducing new legislation or incorporating new provisions into existing legislation to address these risks. Other countries have opted for non-regulatory instruments. Numerous European countries, Canada, Australia, and Japan all prohibit and punish workplace bullying and harassment, with other countries, including the United States of America, moving toward legislation against this abusive workplace conduct.

This book brings together need-to-know information on global workplace bullying and harassment in one place, the first publication of its kind to do so. It will aid those in the fields of labor and employment, human resources management, occupational and industrial health psychology, health and safety, and workplace regulatory compliance stay abreast of laws and developments that these practitioners must be aware of, whether operating nationally or globally. Academics will also benefit. Links to laws and references are provided, enabling further research.

Chapter 1

The European region

Improving and protecting health and safety at work has been an important issue for Europe since the 1980s, with the recogition that a component of worker health and safety is taking the dignity of the worker into consideration.

When the Treaty of Lisbon entered into force in 2009, the European Union’s bill of rights, the Charter of Fundamental Rights of the European Union (2000/C 364/01) (Charter), became legally binding. The 55 articles of the Charter cover political, social, and economic rights for EU citizens (Kraatz, 2015; Official Journal of the European Communities, 2000).

The Charter states:

•Human dignity is inviolable. It must be respected and protected. (Article 1)

•Every worker has the right to working conditions which respect his or her health, safety and dignity. (Article 31(1))

The concept of a worker’s dignity provided for in the Charter is a foundation of European Union laws against bullying and harassment, viewed as dignity violations.

The Charter also provides that gender equality must be ensured in all areas of working life, including in matters of pay, and discrimination based on any ground such as sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation is prohibited. (Official Journal of the European Communities, 2000)

European overview

Bullying/mobbing/harassment at work

No definition of bullying at work has been arrived at in the European Union (EU) and no specific European-wide legislative provisions refer explicitly to bullying at work. Numerous European countries have enacted laws defining and prohibiting workplace bullying and mobbing, including France, Sweden, Norway, Finland, Denmark, Belgium, the Netherlands, Switzerland, and Serbia (see Chapter 2 on EU Member States and neighboring states legislation).

Despite the somewhat different definitions of bullying and harassment used by individual European countries, European researchers widely share the view that harassment (or bullying) at work is systematic mistreatment of a subordinate, a colleague, or a superior, which if continued and long-lasting, may cause severe social, psychological and psychosomatic problems in the target.

(Milczarek & Irastorza, 2012, p. 14)

Violence at work

The situation in Europe concerning the regulation of workplace violence is varied. In some countries, there is specific legislation addressing workplace violence, while in others the subject is addressed through existing health and safety legislation, as well as civil and criminal laws. Some countries employ codes of practice or regulations to regulate and prevent workplace violence.

The EU Framework Agreement on Harassment and Violence at Work (discussed below) provides: “Violence [at work] occurs when one or more worker or manager are assaulted in circumstances relating to work,” and “harassment [at work] occurs when one or more worker or manager are repeatedly and deliberately abused, threatened and/or humiliated in circumstances relating to work.”

Laws often stem from Council Directive 89/391, the Framework Directive for occupational health and safety matters, which stipulates that all employers maintain “safe working conditions” for all its employees. While this Framework Directive does not explicitly list violence as one of the targeted workplace risks, national legislation enacted in application of this directive has been extensively used in relation to workplace violence.

Discrimination/harassment

In 2000, the EU adopted two directives (Directives 2000/43/EC and 2000/78/EC) prohibiting direct and indirect discrimination on grounds of racial or ethnic origin, religion or belief, disability, age, and sexual orientation. Both directives contain definitions of discrimination and harassment.

The definitions provided in the EU directives constitute the common basis for most EU national legislation. Some laws define harassment and/or sexual harassment as a form of discrimination.

•Four types of discrimination are defined in the European Union directives:

•Direct discrimination: where one person is treated less favorably on grounds of sex than another is, has been, or would be treated in a comparable situation;

• Indirect discrimination: where an apparently neutral provision, criterion, or practice would put persons having a particular religion or belief, disability, age, or a sexual orientation at a particular disadvantage compared with other persons; unless that provision, criterion, or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate;

•Harassment: when unwanted conduct related to a particular religion or belief, a disability, age, or sexual orientation takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating, or offensive environment; and

•Instruction to discriminate: i.e., where the personnel manager is told not to hire any people of a certain protected class.

EU Directive 2002/73/EC was subsequently enacted on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. EU Directive 2002/73/EC defines sexual harassment as follows: “where any form of unwanted verbal, non verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.”

Two forms of sexual harassment are widely recognized: quid pro quo harassment and hostile work environment harassment. Although there is no international consensus on the definition of sexual harassment, many countries have definitions based on the above EU directive.

Work-related stress

The European Agency for Safety and Health at Work ( EU-OSHA) has adopted the following definition: “Work-related stress is experienced when the demands of the work environment exceed the workers’ ability to cope with (or control) them.”

The EU Framework Agreement on Work-Related Stress (discussed below) describes stress as “a state, which is accompanied by physical, psychological or social complaints or dysfunctions and which results from individuals feeling unable to bridge a gap with the requirements or expectations placed on them.”

In Europe 25 per cent of workers say they experience work-related stress for all or most of their working time, and a similar proportion report that work affects their health negatively. Psychosocial risks contribute to these adverse effects of work. The most common risks relate to the type of tasks workers perform – for example, whether tasks are monotonous or complex – and to work intensity. High work intensity is associated with negative health and well-being outcomes, especially work-related stress. Violence and harassment are less frequently reported, but have a strong negative relationship with well-being. (European Foundation for the Improvement of Living and Working Conditions and the European Agency for Safety and Health at Work, 2014)

Psychosocial risks

Psychosocial risks arise from poor work design, organization, and management, as well as a poor social context of work, which may result in negative psychological, physical, and social outcomes such as work-related stress, burnout, or depression. Some examples of working conditions leading to psychosocial risks are:

•Excessive workloads

•Conflicting demands and lack of role clarity

•Lack of involvement in making decisions that affect the worker and lack of influence over the way the job is done

•Poorly managed organizational change, job insecurity

•Ineffective communication, lack of support from management or colleagues

•Psychological and sexual harassment, third party violence (European Agency for Safety and Health at Work, n.d. Psychosocial risks and stress at work)

•Psychosocial risks and work-related stress are among the most challenging issues in occupational safety and health. They impact significantly on the health of individuals, organizations, and national economies. (European Agency for Safety and Health at Work, n.d. Psychosocial risks and stress at work)

•Bullying and harassment are increasingly recognized as among the working conditions leading to psychosocial risks. In recent years, issues such as harassment, violence, and bullying at work have become more explicitly recognized as psychosocial hazards. (Wynne et al., 2014, pp. 21–5)

Legislation: European Union (EU) directives

A European Union (EU) directive is a legal act provided for in an EU treaty. EU directives are legally binding and have to be transposed into national laws by Member States within a set deadline. EU directives set out minimum requirements and fundamental principles, such as the principle of prevention and risk assessment, as well as the responsibilities of employers and employees. A directive enters into force once it is published in the Official Journal of the EU. (European Agency for Safety and Health at Work, n.d. Safety and health legislation)

Member States are free to adopt stricter rules for the protection of workers when transposing EU directives into national law; accordingly, legislative requirements can vary across EU Member States. (European Agency for Safety and Health at Work, n.d. European directives on safety and health at work)

Following are relevant EU directives.

Title of Legislation

EU Directive 89/391/EEC Framework Directive on Occupational Health and Safety, as amended

EU Directive 89/391/EEC Framework Directive on Occupational Health and Safety, as amended Directive 89/391 – OSH “Framework Directive” of 12 June 1989 on the introduction of measures to en...