Workplace Harassment (Mobbing): Guidelines for Employers in Serbia

In the modern work environment, the employer's responsibility is not limited to organizing the work process; it also extends to ensuring a safe, supportive and dignified working environment. One of the most common risks undermining such an environment is mobbing, a colloquial term for harassment at work, which can have serious consequences for employees, but also for the employer itself.

Although mobbing is being discussed more and more, a number of uncertainties still persist among employers: what exactly qualifies as harassment? Does every conflict constitute mobbing? When does certain behavior cross the line of what is permissible?

The Law on the Prevention of Harassment at Work provides a broad definition precisely in order to cover all forms of behavior that may endanger an employee's dignity and impair working conditions, but this at the same time requires employers to clearly understand the obligations arising from the law.

Recognizing and preventing mobbing is not only a legal obligation, but also a strategic need of every employer seeking a stable team, a healthy work environment and a reduced risk of litigation. In the text below, we examine the statutory elements of mobbing and the forms of behavior that may qualify as harassment, so that employers have a clear basis for timely reaction and adequate management of employment relations.

1. What constitutes workplace mobbing?

The statutory definition of mobbing: a broad and comprehensive determination

The statutory definition of mobbing is rather broad and comprehensive, which is not a coincidence, but a deliberate legislative decision. The reason for this is the need to cover all potential behaviors and situations that may constitute harassment in the work environment. That is precisely why the Law on the Prevention of Harassment at Work provides that harassment is considered to be:

• Any active or passive behavior towards an employee or a group of employees at the employer;
• Which is repeated;
• And which has as its aim, or constitutes, a violation of the dignity, reputation, personal and professional integrity, health or position of the employee;
• And which causes fear or creates a hostile, degrading or offensive environment, worsens working conditions or leads to the isolation of the employee or to the termination of the employment relationship.

Such a broader determination makes it possible to recognize and sanction, under the concept of mobbing, not only obvious but also covert forms of harassment.

Active and passive harassment at work

It is particularly important to point out that acts of mobbing can be both active and passive. While active behavior most commonly includes open attacks, belittling, insulting or denial of rights, passive behavior is more subtle, but no less harmful.

Examples of active mobbing

Active acts of harassment encompass various forms of inappropriate communication, pressure and the deterioration of interpersonal relations, including shouting, threats, exclusion from work activities, denial of resources, ridicule, spreading falsehoods and other actions that damage the personal or professional integrity of the employee. These acts also include unjustified criticism, the assignment of inappropriate tasks, excessive supervision, denial of opportunities for professional development, as well as threats of dismissal, physical harassment and the deliberate provocation of conflict and stress, all of which together can seriously endanger the employee's health.

Examples of passive mobbing

Passive harassment may manifest itself through:

• deliberately ignoring the employee,
• avoiding communication,
• exclusion from team meetings or activities in which other employees participate,
• withholding information necessary for performing the work,
• various forms of social or professional isolation.

Although often covert, such behavior undermines the employee's dignity in the long run and can have serious consequences for their psychological and professional health.

Why is repetition key to establishing workplace mobbing?

One of the most important elements in assessing whether certain behavior constitutes mobbing is the repetition of the acts.

Case law has taken the position that, for harassment at work to exist, a certain act must have been repeated at least twice, in order to distinguish isolated incidents from systematic, continuous negative treatment.

When can a one-off act constitute workplace mobbing?

Although mobbing is most often associated with repeated behavior, there are situations in which even a one-off act can have long-lasting negative consequences for the employee.

An example of this is the transfer of an employee to a position that does not correspond to their qualifications and competencies, which can permanently damage their professional integrity, reputation and position.

In such situations, even a single act may qualify as harassment at work, provided, of course, that the other elements of the statutory definition of mobbing are also met. In other words, the mere transfer of an employee to a position that does not correspond to their qualifications and competencies could not be considered mobbing; all statutory elements of mobbing must be fulfilled.

Violation of dignity and professional integrity as the essence of mobbing

Regardless of whether active or passive behavior is at issue, the key feature of mobbing is that the acts taken against the employee have as their aim or result a violation of the dignity, reputation, personal and professional integrity, health or position of the employee.

Such acts:

• create a hostile, degrading or offensive environment,
• worsen working conditions,
• affect the mental and emotional state of the employee,
• may lead to isolation or to pressure on the employee to leave their job.

This is the core of the legal protection: to ensure a work environment in which the employee feels safe, respected and treated with dignity.

Which forms of behavior do not constitute workplace mobbing?

The following are not considered mobbing: individual acts of the employer deciding on rights and obligations arising from the employment relationship; the denial or obstruction of statutory and contractual rights which are protected in separate proceedings; as well as measures of work discipline and activities undertaken for the purpose of occupational safety and health.

For example, if an employee were to refuse to wear personal protective equipment at the workplace, thereby knowingly putting themselves at risk and violating the rules concerning occupational safety and health, the employer could, under certain conditions and in accordance with the law, issue them a warning of the existence of grounds for dismissal. Such a warning of the existence of grounds for dismissal could not be considered harassment at work, and the employee would not enjoy protection against the employer's actions under the Law on the Prevention of Harassment at Work; instead, if the employer were to terminate their employment contract, the employee could potentially challenge the lawfulness of the dismissal in a labor dispute, in accordance with the provisions of the Labor Law.

Likewise, mobbing does not cover discrimination, which is dealt with under a separate law, nor occasional differences of opinion, problems and conflicts at work, provided they do not have as their aim the violation of, or the deliberate insulting of, the employee.

Who can be a perpetrator of harassment at work?

The perpetrator of harassment at work can be the employer as a natural person, or a responsible person within an employer that is a legal entity, which constitutes vertical mobbing. However, the perpetrator of harassment can also be any employee or group of employees who harass another employee, which is referred to as horizontal mobbing. In this way, the law recognizes that harassment at work can arise both between employees and between the employer and an employee, and it is important to identify both forms in a timely manner in order to ensure a safe and dignified work environment.

2. Rights and obligations of both contracting parties in the employment relationship: the employer and the employee

Before the commencement of work, the employer is obliged to clearly present to employees the prohibition of harassment, their obligations and its own, and to actively work, through training and information, on recognizing, preventing and stopping mobbing. The employer is also responsible for protecting the employee from harassment and bears liability for damage caused through harassment by a responsible person or another employee, with the right to subsequently seek reimbursement of the damages paid from the perpetrator.

On the other hand, the employee has the right to be informed in writing of the prohibition of harassment and to seek protection from the employer against any behavior constituting mobbing. At the same time, the employee is obliged to refrain from harassment and from abusing the right to protection, and bears responsibility if they deliberately initiate proceedings without grounds, for personal gain or to cause harm to another person.

3. What to do when harassment at the workplace is reported?

When an employee learns of behavior which they reasonably believe constitutes harassment at work, they have the right, and in some situations the obligation, to initiate proceedings for protection against harassment by notifying the authorized person at the employer.

1. When the suspicion concerns another employee

In situations where the alleged harassment was committed by another employee, the employer is obliged to propose, within three days, mediation as a means of resolving the disputed relationship.

The employee who believes they are exposed to harassment, the employee designated as the perpetrator, and the employer jointly choose a mediator: a person who enjoys the trust of all parties. The mediation procedure is urgent, confidential and aimed at quickly reaching an agreement, and it is most often completed within eight working days. Mediation is also a precondition for subsequently filing a lawsuit.

2. When a responsible person or the employer itself is accused of harassment

If the harassment is committed by a responsible person within a legal entity, such as the director, or by the employer as a natural person, it is not mandatory to initiate proceedings at the employer; instead, court proceedings may be initiated immediately.

The employee may request mediation directly from that person or, without prior mediation, initiate proceedings before the competent court within six months of the last act of harassment.

3. How mediation works

The mediator conducts joint and separate discussions, conveys proposals and offers suggestions on possible solutions, but cannot impose a decision on the parties. If the mediator determines that there is a risk of irreparable harm to the employee, they may propose interim protective measures to the employer for the duration of the proceedings.

The procedure ends with an agreement, a decision on discontinuation, or the withdrawal of one of the parties. The agreement may contain measures for stopping the harassment and recommendations to the employer, including the transfer of the employee to a different working environment, provided they are in accordance with the law and the employer's business policy.

4. What if mediation fails?

If mediation does not lead to a resolution, and there are grounds for suspicion of harassment or abuse of the right to protection, the employer is obliged to initiate proceedings to establish the responsibility of the employee accused of mobbing. The law prescribes measures such as a warning, suspension from work without wage compensation, or permanent transfer, while repeated harassment may constitute grounds for termination of the employment contract.

5. Urgent measures for the protection of the employee

Where there is an immediate danger to the health or life of the employee, the employer must take measures without delay: the temporary transfer of the employee accused of harassment, or their suspension from work with wage compensation. If the employer fails to do so, the employee has the right to refuse to work, while retaining the right to payment of wages, and with the obligation to notify the employer and the labor inspectorate.

4. Judicial protection against harassment at work: what employers need to know

When internal protection mechanisms do not produce results, or when a person at the employer is directly responsible for the harassment, the employee moves to the next level: judicial protection. The law provides that an employee who believes they are exposed to harassment by an employer that is a natural person, or by a responsible person within a legal entity, may file a lawsuit with the competent court within the prescribed time limit. The same right belongs to an employee who is dissatisfied with the outcome of the internal protection procedure, provided that they file the lawsuit within 15 days of receiving the employer's notification or decision.

What can the employee claim in a lawsuit?

Before the court, the employee may seek legal protection, including:

• a finding that they have suffered harassment,
• a prohibition of further harassment or of the repetition of such behavior,
• the taking of actions to remove the consequences of the harassment,
• compensation for pecuniary and non-pecuniary damage,
• publication of the judgment.

In practical terms, this means that the court does not merely resolve the dispute of “whether harassment occurred”, but may also order specific measures affecting the working environment and the employer's operations.

The burden of proof: the key specificity of these disputes

The law introduces a rule that is extremely important for employers: if the plaintiff establishes the likelihood that harassment occurred, the burden of proof shifts to the employer. The employer must therefore prove that the disputed behavior did not constitute harassment, which represents a significant procedural challenge if the employer does not have proper documentation, minutes, witnesses or clearly implemented internal procedures.

Urgency of the proceedings and time limits

Court proceedings for protection against harassment are, by law, urgent in nature. The court is obliged to forward the lawsuit to the defendant for a response within 15 days, which shortens the period of procedural uncertainty and speeds up the resolution of the dispute.

In practice, this means that the employer must react quickly, prepare documentation and organize a defense within a short time frame.

Interim measures: protection that takes effect “immediately”

During the proceedings, the court may impose interim measures, either at the request of a party or ex officio, and their purpose is to prevent violent conduct or the occurrence of irreparable harm. The measures most commonly imposed are:

• a prohibition on approaching the employee,
• a prohibition on accessing the area around the employee's place of work.

These measures may be imposed within eight days, and no appeal is allowed against the decision imposing them. For this reason, employers must be aware that interim measures can have an immediate and powerful impact on the organization of work.

5. Workplace mobbing in case law

One of the most significant procedural aspects is the shifting of the burden of proof. In practical terms, this means that proving harassment at work in court proceedings has been made considerably easier for employees, while the procedural position of the employer has become more difficult.

When the employee establishes the likelihood that they are exposed to harassment, courts require the employer to prove the opposite: that the acts described do not constitute harassment, or that they did not occur at all. In practice, this means that employers who do not maintain properly recorded communication, minutes, documented procedures or a consistently applied internal procedure often find themselves in a less favorable position.

There is a case in the case law which shows just how fine the line is between everyday workplace disagreements and what could genuinely constitute harassment at work. One example is a court dispute in which the employee presented a whole series of situations they experienced as degrading, from being transferred to another position, through disciplinary measures, to disagreements with the director regarding the organization of the work process; the court assessed that these were ordinary conflicts and actions within the scope of managerial powers, not systematic mistreatment. What was decisive was that these events did not demonstrate an intent to humiliate, nor did they create an environment that would objectively point to mobbing. Overall, this case is a reminder that courts carefully distinguish between the employee's subjective perception and objectively provable harassment, and that dissatisfaction with scheduling, disciplining or communication with superiors is not, in itself, sufficient to cross the threshold of the employer's liability.

Interestingly, courts very rarely accept allegations of mobbing where it is shown that the disputed behavior can be explained by the lawful management of work discipline, the organization of the work process, or measures taken by the employer for the sake of business efficiency. However, the moment the acts cross the boundary of justified management and begin to affect the dignity, reputation or health of the employee, courts increasingly recognize them as harassment.

Viewed as a whole, case law agrees on one thing: mobbing is established only where there is a clear, consistent and provable pattern of behavior by the employer or employees which goes beyond the boundaries of ordinary working relations. This at the same time means that employers must pay attention to the manner of communication, consistently apply internal procedures and document all work processes in detail, because it is precisely this documentation that gives employers a better procedural position when a dispute arises.

6. Frequently asked questions about workplace mobbing

How many times must behavior be repeated in order to constitute mobbing?

According to the position taken in case law, a certain act must be repeated at least twice in order to distinguish an isolated incident from systematic, continuous negative treatment. An exception exists for a one-off act with lasting consequences, such as the transfer of an employee to a position that does not correspond to their qualifications, which may constitute mobbing even without repetition, if the other statutory elements are also met.

Does a warning or a work discipline measure constitute mobbing?

No. The law explicitly excludes from the concept of mobbing individual acts of the employer deciding on rights and obligations arising from the employment relationship, measures of work discipline and activities undertaken for the purpose of occupational safety and health. For example, a warning of the existence of grounds for dismissal due to non-compliance with occupational safety rules is not considered harassment; instead, the potential lawfulness of such a dismissal is examined in an ordinary labor dispute.

Who can be a perpetrator of workplace mobbing?

The perpetrator can be the employer as a natural person, or a responsible person at an employer that is a legal entity, which is called vertical mobbing, or any employee or group of employees who harass another employee, which is called horizontal mobbing. The law recognizes both forms as grounds for protection.

What should an employee who believes they are exposed to mobbing do first?

It depends on who is accused of the harassment. If another employee is at issue, the first step is to initiate mediation proceedings at the employer, which the employer is obliged to propose within three days. If the employer itself or a responsible person within the legal entity is accused of mobbing, the employee does not have to initiate proceedings at the employer first, but may immediately file a lawsuit with the competent court.

Who bears the burden of proof in court proceedings concerning mobbing?

The employer. As soon as the plaintiff establishes the likelihood that harassment occurred, the burden of proving that the disputed behavior did not constitute harassment shifts to the employer. This is why properly maintained documentation, communication and a consistent internal procedure are key to the employer's position in a potential dispute.

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