Stay in the loop with the most important updates
Contact: Tijana Žunić Marić
Did you know that in Serbia, the first verdict for workplace harassment (mobbing) was reached back in 2008? The harasser was sentenced to 4 months of jail, i.e., 2 years’ probation.
Although all types of workplace harassment have been prohibited for many years, in 2010, the conditions were created to adopt a separate law that would regulate this important matter – the Law on Prevention of Workplace Harassment (hereinafter: Law).
If workplace harassment happens at the employer’s premises, the employer can be held responsible for a compensation of damages to the employee and is at risk of such proceeding affecting their reputation. Not any less significant is the employer’s misdemeanor liability and high fines. Thus, even though you are
not directly taking part in the mobbing, but the workplace mobbing occurs between your employees, you are at risk of being sued before the court.
Despite the fact that the topic of mobbing has become relevant in the media, unfortunately, there are many oversights that employers make regarding the proper compliance with the obligations prescribed by the Law. In this blog, you can find the basic terms and procedures regarding workplace mobbing, as well as the key obligations of employers and employees.
We won’t start off this blog by writing down a number of legal definitions which would cause even greater confusion. Instead, we will list examples of actions and behaviors which qualify as workplace mobbing.
Insulting, cursing, making up, and spreading lies about the personal and professional life of someone are typical examples of workplace mobbing.
However, workplace mobbing is more often represented by passive behavior, such as avoiding the victim, or excluding them from communication, isolating them, and ignoring them.
Whichever act of workplace mobbing is in question, the point is that the action is always directed towards humiliating and underestimating the victim.
For a behavior to be classified as mobbing, the conditions are the following:
As you may notice, the definition of workplace mobbing is quite broad because the intention was to include as many actions and behaviors that could be qualified as mobbing. Nonetheless, the Law does not stop there but it prescribes that encouraging or leading to these kinds of behaviors qualifies as workplace harassment as well.
Mobbing should be distinguished from discrimination at work or discrimination related to work. Besides being different in motives and actions, these two institutes also differ in their legal regulations.
While personal animosity and hostility, as well as the possibility to achieve personal benefits, may be motives for a mobber, the motive for discrimination is always some personal characteristic of the victim either by birth (gender, skin color, nationality, etc.) or during their life (political, syndical, religious views, etc.).
It appears that these two legal concepts may overlap to some extent, especially since the consequences of mobbing and discrimination could be almost the same. For example, harm to dignity, reputation, personal and professional integrity, health, and position of an employee could be the consequence of both mobbing and discrimination. However, one could distinguish between these concepts by testing what are the motives of a discriminator versus the motives of a mobber. Discriminators tend to undermine employees based on their personal animosity towards a certain personal characteristic (for example, because of their political views), while a mobber is usually led by their desire to achieve benefits at work (e.g. to reach a higher position on a hierarchy scale).
The basic employer’s obligation regarding mobbing is to create a safe and healthy working environment, without harassment.
Therefore, as an employer, you have a higher responsibility in this domain. Besides the fact that you are prohibited from performing workplace harassment, you are also responsible for any damage caused by one employee to another, in terms of workplace harassment. Of course, in a case when you as the employer compensate for the damage caused by your employee, later on, you have the right to request compensation for the damages paid due to their behavior.
Still, it should be noted that this procedure may include many court proceedings, which can last for many years, and thus, create unnecessary expenses. And while the employer is trying to prove that they had nothing to do with the mobbing, the employer’s reputation may already be damaged. This is why prevention is key in order to avoid risking your reputation as well as the court’s expenses.
The most important thing that an employer should preventively take regarding the mobbing, in order to ensure that all necessary procedures are being adhered to, and avoid undesirable situations, is to familiarize themselves with their legal obligations and regulate their business accordingly.
The employer’s first obligation regarding mobbing is to notify each employee (in writing) about the prevention of workplace harassment before they enter the employment relationship. The Notice has to include the rights, obligations, and responsibilities of the employee, as well as the employer, regarding the prevention of workplace harassment. The Notice shall also include definitions of basic terms, information that protection from harassment and sexual harassment is exercised at the employer and before the competent court, as well as what doesn’t qualify as workplace harassment. In that regard, a good illustration from the case law, on what is not considered workplace harassment, is periodical differences in opinion at the workplace.
As a consequence of not being acquainted with their legal obligations or inadequate legal counseling, employers are often held liable for a misdemeanor and even fined. Specifically, many employers often omit to deliver such a Notice to each employee, or they provide a Notice which does not include all the necessary elements necessary.
Besides this mandatory act, each employer is obliged to provide their employees information on the person authorized for support, on persons authorized for starting a proceeding for protection from harassment, on a person to whom the request for protection from harassment shall be submitted, as well as the list of the employer’s mediators.
In order to acquaint employees with their rights and obligations, it is considered good practice to adopt a clear and transparent general policy – a Rulebook on protection from workplace harassment. Although adopting this Rulebook is optional (not mandatory), it can act as a preventive measure and minimize the possibility of any oversights by the employer.
If workplace mobbing was performed by an employee or a group of employees, a procedure for protection from workplace harassment at the level of the employer is mandatory – it is a phase that precedes the court procedure.
In that situation, the victim of mobbing is directly addressing the individual who is the mobber, with the aim to resolve the dispute amicably. The employee’s request is then forwarded to the employer.
The employer’s obligation is to offer mediation as a possibility to resolve the dispute. In order for the whole procedure to be implemented in accordance with the Law, it is best to provide clear guidelines and steps which all participants in the proceeding have to adhere to, by adopting a Rulebook on protection from workplace harassment. If there is no such Rulebook, you can easily overlook some of the key responsibilities.
A mediator should be a person of trust for both parties in the dispute – the mediator does not represent any of the parties, but mediates between them, with the aim of finding the best solution for both parties.
The mediator may suggest a possible way to resolve the dispute to the parties, but they have no power to force the parties to act in any way.
The process of mediation at the employer may be resolved by:
It is particularly important to deliver the notification on a failed dispute regarding protection from workplace harassment to the employee since the properness and lawfulness of the performed procedure depend on this.
Regarding the mediation procedure, it is important to know that there is an additional obligation on you as an employer – if the mediation procedure fails, and there is a reasonable doubt that the harassment of an employee had indeed occurred. In that situation, you are obliged to initiate a procedure for determining the responsibility of the accused employee for non-compliance with work discipline, i.e. violation of work obligation, which should be defined by an adequate employer’s policy.
If the employee who suffers from mobbing, in the opinion of the occupational health services, is in imminent danger to their health or life, or at risk of irreparable damage, the employer is required to impose one of the following measures on the employee accused of harassment:
Also, it is the employer’s obligation to notify and train their employees to recognize the cause, forms, and consequences of harassment.
Which manner of protection from mobbing will exist depends on who is the mobber.
The Law states that a mobber can be an employer or a responsible individual, employee, or group of employees.
If the employer is the mobber, the victim can immediately start a court dispute regarding workplace harassment, i.e., they can file a lawsuit.
If the mobber is another employee, the victim of workplace harassment should firstly speak to the employer and start an internal protection procedure (an attempt at an amicable dispute resolution). Only after the internal procedure is over, a lawsuit can be filed.
It is crucial to mention that when an employee who claims to have suffered harassment and the individual who is the mobber are not in an employment relationship with the employer anymore, the proceeding for protection from workplace harassment cannot be initiated, even if the employee claims that the listed actions (which represent mobbing) occurred while the parties were in the employment relationship.
The Law on amicable employment dispute resolution foresees another mechanism of protection from workplace harassment, and that is a proceeding before an arbitrator of an Agency for an amicable resolution of employment disputes. The proceeding is initiated when the party who considers being a victim of harassment files a proposal to the Agency, and if the other party consents to the proceeding, the Agency gets involved and aims to reconcile the parties.
In a proceeding regarding protection from workplace harassment before the court, the defendant is always the employer, no matter who harassed the employee in question.
During the court proceeding, it is determined whether there are actions that qualify as workplace harassment, whether those actions happen continuously and with a certain duration, and the employee should also make it plausible that workplace harassment had occurred. Then, the burden of proof passes onto the employer – the defendant, i.e., their task is to prove that behavior that could be qualified as workplace harassment did not occur.
The employee who considers that they have been exposed to harassment during the court proceeding can request to be determined that:
The last but not least, the employee may ask for the publishing of the verdict which could cause serious damage to the employer’s reputation.
On the other hand, it should be noted that the Law explicitly prohibits employees from abusing their right to protection from workplace harassment. In practice, there are situations where the employees, dissatisfied with working conditions, or for some other reason, out of revolt, initiated unfounded proceedings for protection from harassment against the employer.
The employer’s option in order to protect themselves is to firstly, explain to employees that the abuse of protection from harassment is prohibited, and to foresee a mechanism for disciplinary responsibility of employees in case they abuse their rights.
In case an unjustified court proceeding is initiated against the employer, they can promptly react by starting a proceeding against such employees.
The consequences of mobbing on the victim’s health and mental well-being are unambiguous. Although, as a social phenomenon, mobbing most visibly affects employees, the negative implications of mobbing on the employer’s business and the whole society are significant.
Studies by the International Labor Organization show that mobbing at a company can lower work performance by up to 60%, and increase expenses by up to 180%.
This is why the prevention of mobbing at the workplace is crucial for avoiding the negative consequences. The first step toward prevention is introducing appropriate employer policies, adequate mechanisms for the prevention of workplace harassment, and raising employees’ awareness through regular training.