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Final Report European Association of Labour Court Judges Twelfth Annual Congress 4th & 5th July 2008 FINAL REPORT Harassment and Violence at Work Held at Palace of Justice Schmerlingplatz Vienna Austria Supported by funding from the European Commission 1 TABLE OF CONTENTS General Report p. 3 Appendix I – National Reports Austrian Report p. 21 Belgian Report p. 27 Czech Report p. 41 Estonian Report p. 46 Finnish Report p. 51 German Report p. 56 Hungarian Report p. 63 Icelandic Report p. 73 Irish Report p. 78 Italian Report p. 90 Lithuanian Report p. 95 Luxembourg Report p.101 Maltese Report p.110 Netherlands Report p.121 Norwegian Report p.126 Slovenian Report p.134 United Kingdom Report p.143 Appendix II - Synthesis of Reports p.147 Appendix III - Programme p.214 Appendix IV – List of Delegates p.216 Appendix V - Conference Transcript p.217 Appendix VI - Framework Agreement p.238 Appendix VII - Implementation Report p.241 2 EUROPEAN ASSOCIATION OF LABOUR COURT JUDGES Colin Sara - Secretary General Regional Office of the Employment Tribunals Crescent Centre, Temple Back Bristol BS1 6 EZ United Kingdom Telephone - 44-117 9298261 e-mail – [email protected] Fax - 44-117 9253452 Harassment and Violence at Work Access to Judicial Remedies in implementing the Frameworks Agreement on “Harassment and Violence at Work of 26.4.07 A. Introduction This is the Final Report of the Congress of the European Association of Labour Court Judges which took place at the Supreme Court of Austria on 4th and 5th July 2008. This Report is based on – The National Reports from each participating country which are set out as Appendix I The Synopsis of those Reports prepared by the EALCJ’s expert, which is set out as Appendix II The record of the proceedings of the Congress itself. The Programme is set out as Appendix III and the transcript is Appendix IV. As is indicated from the long-title of the Congress, the starting point is the recent “Framework Agreement on Harassment and Violence at Work” [Appendix V] approved by the social partners on 26th April 2007 and reported to the European Parliament on 8th November 2007. The First Report on Implementation [Appendix VI] was adopted by the Social Dialogue Committee on 18th June 2008. 3 This Report has been prepared by the Secretariat of the EALCJ and has been disseminated in draft form to the delegates at the Congress for their comments and approval. B. Identifying the problem The employment relationship is not simply a legal, contractual agreement. It involves complex, multiple relationships. An employee has a relationship with the corporate employer, with his or her immediate boss, with fellow workers, with customers and with members of the public. In a perfect world all of these relationships would be conducted in a civilised and co-operative manner. However, in reality, any of these relationships can create problems for an individual employee. The work-place is a competitive and demanding arena and employees have to accept that things will not always be as they wish. However, they are entitled to be protected from harassment and violence. The Congress agreed that we should not spend excessive time in trying to define what is meant by “harassment”, but should, instead, concentrate on deciding how best to combat it. It became apparent at the Congress that the problem of workplace harassment, or “mobbing” as it popularly known, has been perceived as a problem in many countries for some time. Initially it was identified as a problem by the popular press, but it has developed to one that society as a whole and, in particular, the judiciary have to acknowledge and address. Although this was touched on quite briefly, we were made aware that harassment does not necessarily come from a manager, or a colleague. An employee can be harassed by customers, patients, school pupils or by members of the public who he comes into contact with during his work. An example is a social worker who visits a prison and is abused by the prisoners. To what extent is the employer under an obligation to take steps to prevent or ameliorate such harassment? During the course of the Congress we had a panel discussion involving two representatives of the social partners from Austria who had been involved in the drafting of the agreement and are involved in its implementation in Austria. It was made clear that the initiative for the Agreement originated from concerns that the Health and Safety Directive was not being fully implemented in relation to harassment. We were clear, however, that there was no reason why its implementation should be restricted to the “health and safety” route. Although this Agreement represents an agreed way forward between the Social Partners, it has no force of law. It is not due to be fully implemented until 2010. 4 Many interesting ideas came from this discussion. One was to challenge the stereotype of the person who may be the subject of bullying. The stereotypical image may be a a young woman who is subjected to sexual innuendo or a callow youth who is teased by the established work-force. A more sophisticated stereotype might be a keen young employee who is over- worked by the management, but it emerges that the most common victim is someone over 40, who is feeling unstable in the labour force, because employers tend to favour younger workers, who are seen as forward-thinking and become disenchanted with older workers who, while experienced, may not welcome change. This demonstrated to us the importance of seeing bullying as a separate issue not necessary connected to any of the standard stereotypes of the disadvantaged worker. The panel discussion also brought out the seriousness of the problem. A Swedish study has suggested that one in six suicides can be due to a work- place problem, though this could exaggerate the link since such problems may be only part of a wider problem in the person’s relationships. The Congress was happy to approve and adopt the description of “harassment and violence” contained the Framework Agreement. “Different forms of harassment and violence can affect the workplace. They can be physical, psychological and/or sexual be one off incidents or more systematic patterns of behaviour be amongst colleagues, between superiors and subordinates or by third parties such as clients, customers, patients, pupils etc. range from minor cases of disrespect to more serious acts, including criminal offences, which require the intervention of public authorities.” This wide description means that the problem needs to be addressed in a number of different ways, ranging from criminal prosecution to informal discussion and advice. It also means that the specific definition used in Directives addressing discrimination on specific grounds (which are dealt with below) may not be the sole basis of definition for the different forms of harassment and violence which can affect the workplace. However, at paragraph 3, it states – “Harassment occurs when one or more worker or manager are repeatedly and deliberately abused, threatened and/or humiliated in circumstances relating to work. By referring to “repeatedly” this seems to exclude the one-off incidents referred to in section 1 of the Agreement. 5 C. Addressing the problem at the workplace (1) Management response The role of labour court judges is always to adjudicate upon problems which have not been addressed and resolved at the work-place. We, therefore, find ourselves deciding whether the events described by the employee actually happened and, if so, whether the employer is responsible. There are, therefore, many situations in which judges have to deal with the management response to allegations of harassment. However, we acknowledge that by the time matters come to court, the damage may already have been done. “Prevention is really what everybody wants to do and, if it ends up in an investigation or court there has been a failure”.1 We debated this problem at some length. The conclusion we reached was that judicial proceedings, which may result in awards of compensation or administrative fines or even prison sentences, do have their place in ameliorating the impact of harassment on the individuals concerned by making them feel that their problems have been recognised. This is dealt with below2. What the Agreement sets out is a number of steps which should be taken by management to prevent, identify and manage problems of harassment and violence. The first step is the need for a statement that harassment and violence will not be tolerated. The risk in such a statement is that it is seen as mere cipher and an alternative to action. The Congress, therefore, emphasised the need for this statement to be properly publicised within the enterprise and also properly implemented at the appropriate level. Many of the judges referred to situations where the business had excellent policies drafted by the Human Resources Department, but where the employees and line managers had no knowledge of them. The statement should set out the procedures to be followed. This gave rise to discussion about who should have the job of identifying problems at an early stage and dealing with them. The problem with acts of harassment, particularly acts of sexual harassment, but also with bullying by people in authority, is that they are most likely to happen in private. It is also common for employees suffering from harassment to be reluctant to tell anyone about it. They may have many reasons for silence – fear of losing the job, fear of ridicule by colleagues, fear of being regarded as a trouble-maker. This means that there is a need for informal, as well as formal procedures.
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