harassment in employment law
bullying labor law
The Labour Code protects employees against acts of harassment in the workplace.
Officials are also protected against workplace bullying.
Under the prevention of such acts, may intervene at different levels, several players from the world of business and labor are: the employer itself, the staff representatives, the HSC, the doctor, the labor inspector, the Ombudsmen.
Under the sanction of those acts the victim has used litigation as well as to criminal cases and may order the harasser to disciplinary, civil, criminal.
The Act of January 17, 2002 codified in the Labor Code protects employees against acts of harassment in the workplace. Employees are also protected against bullying travail.Dans the context of prevention of such acts, the French legislature wished to intervene at different levels, several players the world of business and labor are: the employer itself, the staff representatives, the HSC, the doctor, the labor inspector, the Ombudsmen. Under the sanction of those acts the victim has used litigation as well as to criminal cases and may order the harasser to disciplinary, civil, criminal. [Keywords]: harassment, occupational health, hygiene and safety, further regulation
Until the enactment of the Social Modernization Act of January 17, 2002, the "harassment" was defined in any text legal (as opposed to sexual harassment defined since 1992). The law of social modernization amended by Law of January 3, 2003 has been codified in the Labor Code, the Penal Code, and the general status of public service. First, these texts are codified under various titles and chapters in the legislative part of the Labour Code, both in the field related to the individual labor relations, general provisions concerning the employment contract, rules specific to the employment contract, in the field of collective labor relations, labor regulations, labor conditions, health and safety, services occupational health, staff representatives. Second, Bullying at work also concerns the criminal law work, criminal sanctions are codified in the Labor Code and also in the penal code. Public law also addresses workplace bullying in public service, both in the rules governing civil service status in the rules relating to hygiene, occupational safety and health prevention. In the right of the public service, he was inserted into Title 1 of the general staff of a new section 6-d whose structure is similar to that in 6-ter on sexual harassment.
the Social Modernization Act introduced, with some adjustments (public officials do not, for example, the system of evidence in the art. L. 122-52 C. trav., Now Art. L . 1154-1), the new device to fight against bullying in the Public Service Regulations (L. No 83-634 of 13 July. 1983, Art. 6d: Circ. No 2007/047 of 27 Feb. 2007 [Education]; Circ. No 2005/013 of 13 July. 2005 on the prevention of bullying, suffering and violence at work [culture]). These provisions apply also to non-holders of public law (contract, temporary).
Bullying at work in the company
bullying labor law
workplace bullying
The Labour Code protects employees against acts of harassment in the workplace.
Officials are also protected against workplace bullying.
Under the prevention of such acts, may intervene at different levels, several players from the world of business and labor are: the employer itself, the staff representatives, the HSC, the doctor, labor inspectors, mediators.
Under the sanction of those acts the victim has used litigation as well as to criminal cases and may order the harasser to disciplinary, civil, criminal.
workplace bullying
HMT
MORAL HARASSMENT AT WORK IN FRENCH LAW
Patrick BRABANT
The Act of January 17, 2002 codified in the Labor Code protects employees against acts of harassment in the company . Employees are also protected against bullying travail.Dans the context of prevention of such acts, the French legislature wished to intervene at different levels, several players from the world of business and labor are: the employer itself, the staff representatives, the HSC, occupational physicians, labor inspectors, mediators. Under the sanction of those acts the victim has used litigation as well as to criminal cases and may order the harasser to disciplinary, civil, criminal. [Keywords]: harassment, occupational health, hygiene and safety, further regulation
I-The scope of the legislative and the fundamental concepts
Until the enactment of the Social Modernization Act of January 17, 2002, the "harassment" was defined in any legal text (as opposed to sexual harassment defined since 1992). The law of social modernization amended by Law of January 3, 2003 has been codified in the Labor Code, the Penal Code, and the general status of public service. First, these texts are codified under various titles and chapters in the legislative part of the Labour Code, both in the field related to individual employment relationships, Provisions General concerning the employment contract, rules specific to the employment contract, as in the field of collective labor relations, labor regulations, labor conditions, health and safety, occupational health services, staff representatives. Second, Bullying at work also concerns the criminal law work, criminal sanctions are codified in the Labor Code and also in the penal code. Public law also addresses workplace bullying in public service, both in the rules governing civil service status in the rules relating to hygiene, to occupational safety and health prevention. In the right of the public service, he was inserted into Title 1 of the general staff of a new section 6-d, whose structure is similar to that in 6-ter on sexual harassment. At all times, some employees have been pressured in their work, sometimes by other employees, most often by superiors. The concept of bullying has emerged thanks to Professor LEYMANN, a research psychologist working in Sweden published in 1996, Harassment, persecution at work. In France, the concept has been particularly explored by Marie-France Hirigoyen with the publication of his book The Moral harassment, violence perverse daily The Social Modernization Act of January 17, 2002 thus enshrines the concept of bullying by inserting Article L 122-49 of the Code of Labour which stipulates in paragraph 1 that "no employee shall suffer repeated acts of harassment that have as their object or effect a degradation of working conditions that may affect his rights and his dignity, affect his health physical or mental impair his professional future. "Considered, rightly, as a real public health problem, bullying at work is now part alongside of sexual harassment in the Labor Code, the Penal Code and the status of the public. In addition, the legislature has sought to extend protection against harassment (and also sexual) seamen (Article L 742-8 of the Labour Code) to employees of houses (Article L 772-2 of the Labor Code ), the janitors and building employees for residential use (Article L 771-2 of the Labour Code), the minders (Article L 773-2). The plight of civil servants has been considered by the legislature, partly because of the Council report Economic and Social which recommended the extension of the concept of harassment in the public sector. The law of 17 January 2002 amends the law so 86-634 of 13 July 1983 on the rights and obligations of officials who are therefore also protected against bullying in terms similar to those used by the Code Travail.On notes and a clear intention of the legislature to establish the prohibition of harassment in principle interfere al. Appropriate, in each particular situation, identify, in terms of legislative criteria applied and interpreted by the courts, the existence of a harassment moral.En addition, the law, Article L 122-49 paragraph 2 of C.trav, considers the employee as a victim who was punished, dismissed or has been subject to discrimination, direct or indirect, to have suffered or refused to undergo, the actions harassment or for testifying such conduct or reporting, particularly in terms of pay, training, reclassification, assignment, qualification, classification, professional promotion, transfer or renewal contrat.Pour prevention of harassment, it is mandatory that the rules of the company includes a statement indicating the provisions the prohibition of any practice of bullying in the company (Article L 122-34 Labour code).
H-Preventing workplace bullying
In the field of preventative measures to protect the health of employees, the employer must, first plan the prevention of occupational risks in light of the risk of bullying ( Article L 230-2 Code du Travail) "head of the school takes steps to ensure the safety and health protection" physical and mental workers in the facility, including temporary workers ... "And, secondly take all necessary steps to prevent psychological harassment (Article L 122-51). If the employer fails to meet these obligations may be his responsibility engagée.On emphasize the general principle that the employment contract must be executed in good faith (Article L 120-4 Code du Travail) and the general obligation security burden on the employer's role as an entrepreneur and in exercising its power of direction and organization of the operating mode of its établissement.De addition, staff representatives play a preventive role. Thus the committee on health, safety and working conditions (HSC) may propose preventive actions regarding harassment. (Article L 236-2 of the Labor Code) The delegate (s) (s) of staff may use its right of alert in the presence of a situation bullying. In practice, the delegate of the person] before the manager who is then obliged to investigate and remedy this situation.De its part, the person who considers himself the victim of acts of moral harcèlemenl may if conditions are met, use its right to withdraw its job without risk of sanctions justifiées.Le doctor can intervene in cases of bullying as has the opportunity to propose measures of individual transfer or processing station justified by the state of physical and mental health of employees. The employer must then consider these proposals and if he refuses, the decision is made by the Inspector of Labour after consulting the Medical Inspector travail.Par addition of specific stakeholders are sometimes asked, in fact, aware of the phenomenon of harassment, some companies adopt preventive approaches by creating internal stakeholders of the type competent cells in the field as multidisciplinary teams (doctors, social workers, lawyers, etc..) Managed by the human resources department or by an ethics committee. In addition, businesses and trade unions can resort to external stakeholders such as companies or organizations that specialize in counseling employees to prevent harassment or come in assistance to victims.
III-treatment and punishment of workplace bullying
He who considers himself a victim of acts that constitute harassment is clearly protected by the legislation that put at its disposal numerous means of shares or shares of mediation, or legal action in civil or criminal for officials Public appeals court administratifs.Toutefois litigation, in practice, legal actions require the provision of records very strong level of evidence of material facts of bullying, and even if the evidence is still in labor law, c ' is that it can be done by any means, it is often difficult to obtain evidence of work colleagues who are still in office or position in the company, even though the texts have provided protection in case of testimony. This discrepancy between theory and practice should never be lost sight of in the effective treatment of a social phenomenon.
load the proof is shared between the party alleged victim and alleged harasser. An employee who considers himself a victim of harassment must prove materiality and the facts assuming the objective existence of harassment, the burden then shifts to the defendant, in view of these elements, to prove that these actions do not constitute of such harassment and that such acts are justified by objective factors unrelated to any harcèlement.On usefully emphasize that these rules of evidence do not apply in criminal cases under the overarching principle of the presumption of innocence. It will also indicate
that the law provides that unions may, with the consent of the employee that they must justify sue for it by substituting for him, however, the employee may intervene in court and stop it at any time (art L 122-53 of the Labour Code)
sanctions be imposed on the harasser are of several types and at different levels.
First, civil penalties are possible, awarding payment of money to the victims as damages for the injury suffered, the amount of these benefits are left to the discretion of judges based on the elements of folder.
Second, if a criminal action was initiated, the stalker faces over one year imprisonment and € 15,000 fine in addition, where appropriate, measures to publicize the trial and the prohibitions of professional practice or further penalties. Thirdly, if the harasser is an employee, it may undergo further discipline (art L122-47 and section 122-50 of the Labour Code).
In addition, an employee may be dismissed if he has suffered or refused to undergo repeated acts of harassment. In this case, it can support the revocation of his dismissal and seek reinstatement in the company.
Bullying at work, something old but still relevant, is legally defined, however, it should follow the decisions of judges that will gradually draw all the legal contours of this complex concept and examine carefully how the Court will apply the textes.A example, these include the following species: (cass.soc October 27, 2004) An employee engaged in fixed term contract (CDD) as a facilitator of the store had purpose of withdrawing sontéléphone portable professional use, the introduction of a new obligation and without justification to report every morning at the office of her supervisor and had been given new tasks unrelated to his duties. These elements had caused a depression which required medical evidence of work stoppages. For judges, the combination and repetition of these acts constituted a case of bullying. The Court of Cassation approved the approach adopted by jugement.Dans all cases, the fact remains that given the complexity of the concept of bullying, its characterization is never easy for the practitioner of law and require it in particular perfect knowledge of labor relations in the enterprise and conditions of performance travail.Mais labor law itself is characterized by its complexity, complexity also increased by the changes that are continually subject since the government must take account of changes in life economic and social as well as the emergence of social phenomenon that must be treated as suffering psychological harassment at work and moral moral.harcélement
LABOUR CODE (New legislative part)
Chapter II: Bullying Article L1152-
1
No employee shall suffer repeated acts of harassment that have the purpose or leads to a deterioration of working conditions might adversely affect his rights and his dignity, affect his physical or mental health or jeopardize his professional future. Article L1152-2
No employee may be sanctioned, dismissed or subjected to discrimination, direct or indirect, in particular as regards remuneration, training, reclassification, assignment, qualification, classification , professional promotion, transfer or renewal of contract for refusing to be sustained or repeated acts of harassment or have witnessed such acts or reporting them. Article L1152-3
A break in the employment contract without knowledge of the provisions of Articles L. 1152-1 and L. 1152-2, any provision or act contrary is void. Article L1152-4
The employer shall take all necessary measures to prevent acts of harassment. Article L1152-5
Any employee who committed acts of harassment is liable to disciplinary action. Article L1152-6
A mediation process may be implemented by anyone who believes the business of bullying or the defendant.
The choice of mediator been an agreement between the parties.
The mediator shall ascertain the state of relations between the parties. He tries to reconcile and submit their proposals in writing that he set to stop the harassment.
When conciliation fails, the mediator informs the parties of any sanctions and the procedural safeguards for the victime.Le workplace bullying
can amount to bullying - a lot of pressure and bullying, attempts to reduce salary-reduction responsibilities to another employee - the order to execute certain work for the sole purpose of humiliating the employee in the eyes of other employees under his responsibility-proposal mutation in a town further away from its home without the employer cares about the incompatibility of bus schedules and those of the employee, and this exposed Parking fees at large relative to its modest salary-how about the subject of sexist and vulgar as "worthless", "if it is badly fucked she goes elsewhere" - reflections on relentless blondes, as "the girlfriend", "we are sick of the blonde, she'll release" - to undergo a particularly heinous and unconscionable act as the deposit on her desk a package containing a dead bird, to be "disliked" - about their heaviness and repetition eventually becoming unbearable-establishment of an organization designed to discourage vexatious and obtain the employee's departure - removal from his office in a room for passing and live phone deleted, making it virtually impossible relationships with clients regularly be assigned to other duties unrelated to his duties-not to be kept informed of meetings which the employee should have participated, are blamed its inability to use software while the employee had been away from the training organized by the employer, about attitudes and sometimes contemptuous, sometimes offensive and always threatening on the part of the employer-tyrannical behavior, personal attacks, attitudes incoherent, pressure, behavior tends to devalue-mailings suggesting an unjustified breach of the employment contract be locked up in administrative tasks and menial-subordinate working conditions substantially altered and much less interesting-changing areas, generators a disturbance of his health or detrimental to their rights in pay-recourse to the police for a declaration that the employee refused to perform tasks not within his duties, constituting a measure of coercion and improper infamous-infamous theft charge for not-established references scabrous on the color and size of sex jokes bad, drawings and caricatures drunk crawling without being confined to a delicacy very minor role as the brewing docking told his phone-a newcomer.
07/05/2009 - 4:35 p.m. Socially employee is only required to provide elements that can assume the existence moralUn bullied employee engaged as a painter journeyman professional in 2001 in 2003 informs his employer that he is the victim of harassment from his supervisor, following his absence from work due to illness on 19 January February 2, 2004, the doctor, by notice in the February 6, 2004, concluded that "an inability to all positions in the company (...). Danger to himself and others "back off work due to illness, effective 9 February 2004, the employee was dismissed for physical disability and not reclassifying February 20, 2004. The employee enters the industrial tribunal, a claim for damages for termination without cause real and serious harassment. The appellate court dismissed the application. The Court of Cassation set aside the decision of the Court of Appeals and holds that the first one interview with a staff representative was not sufficient to establish that the employer has co nform
its obligations seeking reclassification and the short time elapsed after the finding of unfitness demonstrated by itself, that there had been no serious attempt to reclassification.
Secondly, the demand for damages under the harassment, the Court of Cassation set aside the decision of the Court of Appeal in that it could reject the request of the employee solely because of the lack of relationship between health status and degradation working conditions. The appellate court noted that because the medical certificates, which made mention of a depressive state, did not specify the relationship with working conditions and the Doctor's work does not contain any evidence relationship between the incapacity and the existence of moral harassment. Visa Articles L. 1154-1 and L. 1152-1 of the Labour Code, the Court of Cassation said that the employee is only required to provide elements that can assume the existence of moral harassment.
Source:
Cass. Soc., April 30, 2009, No. 07-43219, FS-P + B, Canario v. Sté MB Painting: Jurisdata No. 2009-047979 © LexisNexis SA
workplace bullying
The Supreme Court recently ruled that the dismissal of an employee who had reported acts of bullying, not finally established, was null under articles L 1152-2 and L 1152-3 of the Labour Code, since the bad faith of the employee does was not alleged. Considering Articles L. 1152-2 and L. 1152-3 of the Labour Code; Whereas only Under the first of these texts no employee may be sanctioned, dismissed or subjected to discrimination, direct or indirect, in particular as regards remuneration, training, reclassification, assignment, qualification, classification , professional promotion, transfer or renewal contract, or have been refused to undergo repeated acts of harassment or have witnessed such conduct or reporting, as according to the second, breach of employment contract entered into in contravention of Articles L.1152-1 and L. 1152-2 of the Labour Code, any provision or act otherwise is zero, it deduced that an employee who recounts the facts of bullying can not be dismissed for that reason, except bad faith, which can result from the mere fact that allegations are not established, that in deciding that the dismissal of X. .. based on a real and serious and dismiss its request for damages for wrongful termination, the ruling held that the failure to charge an employee to his employer, after having notified the Labour Inspectorate, irregularities serious, the reality is not established, and blamed for acts of harassment to a supervisor without prove characterizes abuse in the exercise of freedom of expression and constitutes a real and serious cause for dismissal; What so ruling, while the complaint of harassment by the relationship moralpar the employee, whose bad faith was not alleged, carried in itself the automatic nullity of the dismissal, the Court of Appeal violated the aforesaid provisions
bullying and good faith
An employee who believes in good faith, being harassed Morale is protected The Supreme Court protects the employee who believes himself the victim of bullying even if the facts are not established, but on condition it is in good faith. Employees who are victims or witnesses of harassment are protected against any form of retaliation. The employee informs the employer of acts of harassment a few months after being hired, a team leader complains to her employer of "illegal acts" and, in particular, acts of harassment by a supervisor . The employee had already notified the Labour Inspectorate. The suites of mail addressed to his employer not long, a month later, the employee is dismissed for serious misconduct.
The appellate court does not see anything wrong with the dismissal, justified by it. "The fact that an employee be attributed to his employer (...) serious irregularities, the reality is not established, and blamed for acts of harassment to a supervisor without proving an abuse characterized in the exercise of freedom of expression. " The question before the Court of Cassation is: if the law protects employees from 2002 victims or witnesses of acts of bullying, this protection does it play when the facts alleged by the employee are not established? Yes, she says, but on one condition: that the employee is in good faith and has not defamed the company deliberately. For the court, bad faith "can arise from the mere fact that allegations are not established." In the absence of bad faith of the employee, his dismissal is void, the judges decide.
This solution differs from that in a ruling a year ago. In this case, the reasons stated in the dismissal letter added to the denunciation of acts of harassment were not established to permit judges to withhold the real and serious (February 6, 2008 Case No. 289). If the employee is in bad faith, the protection will not play. It may be fired, possibly for serious misconduct. If proof of facts of bullying is often difficult to report, certify the employee's good faith can be a tricky test for judges. To forge a conviction, the judges examine whether there are corroborating testimony, if the employer has objected to the series of letters addressed to the Labour Inspection (CA Toulouse, 4 ch. Soc., February 24, 2000) if the employee produces any medical certificates.
But where the facts alleged by the employee but not established, judges are faced with a task more difficult. It is no longer to prove the facts, but to consider the mindset of the employee. His dismissal is now zero, the employee in good faith is protected. His dismissal is void under Articles L.1152-2 and L.1152-3 of the Labour Code, which protects victims and witnesses of bullying. He may claim reinstatement. More generally, the employees ask for damages can be substantial. If they do not require their reinstatement, they are entitled to severance payments and compensation to repair the entire damage resulting from unlawful dismissal (at least the last 12 months salary). Moreover, nothing prevents them to seek moral damages separately. However, where the facts are not established, demand is likely to be current HR rejetée.source
Bullying Prevention at work
Preventing workplace bullying
In the field of preventative measures to protect employee health, employer,
one hand planning the prevention of occupational risks in light of the risk of bullying: "The headteacher takes the necessary measures to ensure the safety and health protection" physical and mental workers in the facility, including temporary workers ... "
and, secondly take all necessary steps to prevent bullying.
If the employer does not comply with these obligations may be incurred liability.
We highlight the general principle that the employment contract must be executed in good faith, and the general safety requirement placed upon the employer in its role as an entrepreneur and in the exercise of its power management and organization of the operating mode of its establishment.
In addition, staff representatives are a preventive role.
Thus the committee on health, safety and working conditions (HSC) may propose preventive actions regarding harassment.
The delegate (s) (s) of staff may use its right of alert in the presence of a situation of harassment.
In practice, the delegate of the person] before the manager who is then obliged to investigate and remedy this situation.
For its part, the person who considers himself the victim of acts of moral harcèlemenl may, if conditions are met, use its right to withdraw his job safely sanctions justified.
The occupational physician can intervene in cases of bullying as it has the possibility to propose measures of individual transfer or processing station justified by the state of physical and mental health of employees. The employer must then consider these proposals and if he refuses, the decision is made by the Inspector of Labour after consulting the doctor inspector. Moreover
specific stakeholders are sometimes asked.
Indeed, aware of the phenomenon of harassment, some companies adopt preventive approaches by creating internal stakeholders of the type competent cells in this area as multidisciplinary teams (doctors, social workers, lawyers, etc..) managed by the Human Resources Department or by an ethics committee.
In addition, businesses and trade unions can resort to external stakeholders such as companies or organizations that specialize in counseling employees to prevent harassment or assisting victims
sanctions harassment in the company
sanctions of workplace bullying
He who considers himself a victim of acts that constitute harassment is clearly protected by texts that are at its disposal numerous means of shares or shares of mediation or legal proceedings in civil or criminal proceedings and for public servants the litigation before the courts administratifs.Toutefois, in practice, actions require the provision of judicial records very strong level of evidence of material facts of bullying, and even if the evidence is still in labor law, ie it can be done by any means, it is very often difficult to obtain evidence of work colleagues who are still in office or position in the company, even though the texts have provided protection in this case témoignage.La specific burden of proof is shared between the party alleged victim and alleged harasser. An employee who considers himself a victim of harassment must prove materiality and the facts assuming the objective existence of harassment, the burden then shifts to the defendant, in view of these elements, to prove that these actions do not constitute of such harassment and that such acts are justified by objective factors unrelated to any harassment.
usefully be stressed that these rules of evidence do not apply in criminal cases under the overarching principle of the presumption of innocence.
the law provides that unions may, with the consent of the employee that they must justify sue for it by substituting for him, however, the employee may intervene in court and stop it at any time .
sanctions be imposed on the harasser are of several types and different niveaux.En First, civil penalties are possible, awarding payment of money to the victims as damages for the injury suffered, the amount of These benefits are left to the discretion of judges based on evidence in the file.
Second, if an action prosecuted, the perpetrator faces over one year imprisonment and € 15,000 fine in addition, where appropriate, measures to publicize the trial and the prohibitions of professional practice or further penalties. Thirdly, if the harasser is an employee, it may receive further disciplinary action.
In addition, an employee may be dismissed if he has suffered or refused to undergo repeated acts of harassment. In this case, it can support the revocation of his dismissal and seek reinstatement in the company.
Scope of the legislative and key concepts.
Until the enactment of the Social Modernization Act of January 17, 2002, the "harassment" was defined in any legal text (as opposed to sexual harassment defined since 1992). The law of social modernization amended by Law 3 January 2003 was codified in the Labor Code, the Penal Code, and the general status of public service.
First, these texts are codified under various titles and chapters in the legislative part of the Labour Code, both in the field related to the individual labor relations, general provisions concerning the employment contract, specific rules the employment contract, as in the field of collective labor relations, labor regulations, labor conditions, health and safety, occupational health services, staff representatives.
Second, Bullying at work also concerns the criminal law work, criminal sanctions are codified in the Labor Code and also in the penal code.
Public law also addresses workplace bullying in public service, both in the rules governing civil service status in the rules relating to hygiene, safety and prevention Medical. In
the right of the public service, he was inserted into Title 1 of the general staff of a new section 6-d, whose structure is similar to that in 6-ter on sexual harassment.
At all times, some employees have been pressured in their work, sometimes by other employees, most often by superiors. The concept of bullying has emerged thanks to Professor LEYMANN, a research psychologist working in Sweden published in 1996, Harassment, persecution at work.
In France, the notion was, in particular, explored by Marie-France Hirigoyen with the publication of his book The Moral harassment, violence perverse daily
The Social Modernization Act of January 17, 2002 dedicates the concept of bullying by inserting into the Labor Code which reads the text in that "no employee must undergo repeated acts of harassment that have as their object or effect a degradation of working conditions might adversely affect his rights and his dignity, affect his physical or mental health or jeopardize his professional future. "
Considered, rightly, as a problem of public health, workplace bullying is So now built alongside of sexual harassment in the Labor Code, the Penal Code and the status of the public. In addition, the legislature has sought to extend protection against harassment (and also sexual), domestic workers, the janitors and building employees for residential use, with childminders.
The plight of civil servants has been considered by the legislature, especially because the report of the Economic and Social Council which recommended the extension of the concept of harassment in the public sector. The law of 17 January 2002 amends the law so the 86-634 July 13, 1983 on the rights and obligations of officials who are therefore also protected against bullying in terms similar to those used by the Labor Code.
There is therefore a clear intention of the legislature to establish the prohibition of harassment in principle interfere al. Appropriate, in each particular situation, identify, in terms of legislative criteria applied and interpreted by the courts, the existence of moral harassment.
In addition, the law considers victim an employee who was disciplined, dismissed or who has been a discriminatory measure, direct or indirect to have suffered or refused to undergo, the acts of bullying or have witnessed such conduct or reporting, particularly in terms of pay, training, reclassification, assignment, qualification, classification, professional promotion , transfer or renewal.
For the prevention of harassment, it is mandatory that the rules of the company includes a statement indicating the provisions on the prohibition of any practice of bullying in the company
bullying labor law harassment
Morale in the company
Harassment morale is characterized by repeated acts that have as their object or effect a degradation of working conditions may adversely affect the rights and dignity of the employee to alter his physical or mental health or jeopardize his professional future, Article L . 1152-1of the Labour Code. A single act, even when serious, can not lead to the qualification of harassment. Bullying can manifest as shelving, criticism or ridicule repeated humiliating working conditions, a multiplication of unjustified sanctions, or a systematic denigration of the work. Thus, is constitutive of bullying, for an employer to send the employee repeatedly bullying, to discredit him vis-à-vis its peers and to prevent him from fully exercising its functions. Burden of proof harassment at work
In four judgments delivered on 24 September, the Supreme Court to reconsider its stance on workplace harassment and considers it his responsibility to monitor now and the trial court divided between the employee and the employer the burden of proving the facts constituting harassment.
If the employee establishes facts from which it assume the existence of harassment, it is incumbent upon the defendant, in view of these elements, to prove that these actions do not constitute harassment and that its decision is justified by objective factors unrelated to any harassment. This echoes the rule laid down in Article L. 1154-1 of the Labour Code. Thus, the employee must establish the facts he cites, but judges must understand the whole and seek help if they presume the existence of the alleged harassment. If this happens, it then returns to the employer to establish those facts characterize not a situation of harassment (juritel) can amount to bullying - a lot of pressure and harassment, attempted reduction of the wage-reduction responsibilities to another employee - the order to execute certain work for the sole purpose humiliating the employee in the eyes of other employees under his responsibility-proposal mutation in a town further away from its home without the employer cares about the incompatibility of bus schedules and those of the employee, which exposed him to significant parking fees from its modest salary-how about the subject of sexist and vulgar as "good to none, if it goes badly fucked elsewhere "- reflections on relentless blondes, as" the blonde "," we are sick of the blonde, she'll release "- to undergo a particularly heinous act and unacceptable as the deposit on his desk a package containing a dead bird, to be "disliked" - about their heaviness and repetition eventually becoming unbearable-establishment of an organization intended to discourage vexatious employee and obtain his departure - moving his office into a room for passing and live phone deleted, making virtually impossible relationships with clients regularly be assigned to tasks unrelated to his duties-not to be kept informed of meetings to which the employee should have participated, be blamed its inability to use software so that the employee had been sidelined the training organized by the employer, about attitudes and sometimes contemptuous, sometimes offensive and always threatening on the part of the employer-tyrannical behavior, personal attacks, inconsistent attitudes, pressures , behavior tends to devalue-mailings unjustified suggestive of rupture employment contract be confined in administrative tasks and menial-subordinate working conditions substantially altered and much less interesting-changing sectors, generating a disturbance of his health or detrimental to their rights to use pay- the police to see that the employee refused to perform tasks not within his duties, constituting a measure of coercion and improper infamous-infamous theft charge for not-established references scabrous on the color and size Suspicious sex jokes, drawings and caricatures drunk crawling be confined without sensitivity to a very minor role as the brewing docking told his phone-a newcomer.
harassment in the company
Bullying: Implications for the harasser's employment contract
If the employer must take all necessary measures to prevent acts of harassment, it is not within the powers the judge to order the modification or termination of the employee's contract of employment which are attributed to such acts, at the request of other employees, others contract.
Soc. 1 July 2009, Social
, RJS 2006. 679, No. 916, Dr. soc. 2006. 832, note Rade; JS Lamy 2006, No. 193-2, JCP E 2006. 2315, Prieur note). This safety requirement translates into a "duty of intervention by the employer to ensure the effectiveness of the right to health" of employees at work (Mr. Véricel, employers' obligation to protect the health and safety continues its expansion, RTD 2007. 249). In this sense, Article L. 1152-4 of the Labour Code requires employers to take all necessary measures to prevent acts of harassment.
In this case, the employer had a purely passive attitude, refusing clearly change of assignment or to terminate the harasser. The employee victim then complained to his employer not to have ended the situation of harassment by the sidelining of the employee, the harasser.
In other words, the employer does not sanction the author of the wrongful conduct. Was it so far required to do? Punishing the harasser is there an option or an obligation for the employer (on this question Adam VP, Bullying, Dem. Trav. Dalloz., No. 230)? Section L. 1152-5 of the Labour Code does not answer this question, he states that "all employees who have to acts of harassment is liable to disciplinary action. " Admittedly, the employer is normally the sole judge of whether disciplinary action. But "the punishment of violations to the dignity of the human person has some difficulties to fall into the classic problem of disciplinary power" (A. Mazeaud harassment among employees: the contribution of the Modernization Act, Dr. soc. 2002. 323 ). So bullying is it an "act contrary to the dignity of employees in the company (who) must be punished, the employer is of course, but only by the officer's legal system impose this penalty "(P. Adam, prev., No. 232). To confirm this interpretation, we must add that the penalty has a deterrent effect, by discouraging the stalker to continue. The obligation to prevent laid down in article L. 1152-4 of the Labour Code therefore implies an obligation for employers to punish the perpetrator of bullying.
This decision, widely expected to become, says that "it is not within the powers of the judge to order the modification or termination of the employee's contract of employment which are attributed to such acts, at the request of other employees, third party to that contract. " The industrial tribunal can not judge substitute for the employer to change jobs or dismiss the author of harassment. It is the responsibility of one employer to the employee to propose the amendment of his employment contract as a disciplinary sanction and dismiss him in case of refusal. And this, especially as bullying, such as sexual harassment (Soc. Mar. 5, 2002, Bull. Civ. V, No. 83, D. 2002. Somm. 2092, obs. Paulin) should necessarily be a misconduct.
Still, unless the defaulting employer fails to comply with safety by not taking appropriate action to prevent bullying and stop it. In doing so, he commits civil liability, even if not the author of bullying. Indeed, the safety obligation is an obligation of result, so that no fault can not exonerate the employer (Soc. June 21, 2006, spec.).
In the end, "the employer will have a vested interest in dismissing the guilty, the case law guaranteeing the qualification of misconduct, if he will not be condemned for having been slow to take action to stop the harassment" ( C. Rade, Bullying and responsibilities within the company: the dark clarification, Dr. soc. 2006. 830). S. Maillard sourceDalloz
Bullying
It is not within the powers of the judge to order the modification or termination of the contract the employee guilty of acts of harassment.
Two employees were victims of acts of harassment by the warden of the institution that employed them. They asked, before the Labour Court, the conviction of the employer to damages, and ordered the latter is "to remove the director from office."
The Court of Cassation confirmed the decision of the trial court considers that, if section L. 1152-4 of the Labour Code requires employers to take all necessary measures to prevent acts of harassment, the judge has no authority to order the modification or termination of the employment contract of the author of employee actions at the request of other employees.
The obligation to prevent the employer in cases of harassment, see Lamy Social Cass. Soc., 1 July. 2009, No. 07-44482
HMT
It is not within the powers of the judge to order the modification or termination of the contract the employee guilty of acts of harassment.
This was confirmed by the Supreme Court in a case before him (Cass. soc., 1 July. 2009, No. 07-44482, P + B + R), where two employees have been victims of acts of harassment from the director of the institution that employed them. They asked, before the Labour Court, the conviction of the employer to damages, and ordered the latter is "to remove the director from office."
The Court of Cassation confirmed the decision of the trial court considers that, if section L. 1152-4 of the Labour Code requires employers to take all necessary measures to prevent acts of harassment, the judge has no authority to order the modification or termination of employment contract perpetrator of the acts of the employee at the request of other salariés.Source avocat.fr
power of the court for harassment
Bullying: extent of the judicial power
Two employees of an association, victims from Director of the institution, acts of harassment seek judge's conviction of their employer for damages and that he be ordered to "remove the director from office."
The appellate court rejected the injunction request to the employer to dismiss the director of its functions. The Cour de cassation, in this case, the limits the interference of the judge in the contractual relationship. Indeed, "if, pursuant to Article L. 1152-4 of the Labour Code, the employer must take all necessary measures to prevent acts of harassment, it is not within the powers of the judge to order the modification or termination of the employment contract of an employee which are attributed to such acts, at the request of other employees, third party to that contract. " Therefore, "the appellate court held that having exactly the order he was asked to deliver to the employer involved a change in the employment contract of the director who could not be achieved with the consent of the complainant and his dismissal in case of refusal, it is rightly dismissed the employees of this request and referred the employer to meet its obligations under Article L. 1152-4. "Few decisions where the Supreme Court seems to be limits to the power of judges. In this case, the relative effect of contracts needed forcefully against the power of juge.Source: Cass. Soc., 1 July. 2009, No. 07-44482, FS-P + B + R, and Tréboscen Duneau v. Assoc. Closravi Hameau Saint-Michel: Jurisdata No. 2009-048966 © LexisNexis SA
Harassment intentional element
Definition of Harassment moral element of intent
Bullying is made, regardless of the intent of its author, since repeated acts are characterized by causing a deterioration of working conditions that may affect the rights and dignity of the employee , impairing his health or impair his professional future.
Having regained control of the qualification of bullying (Soc. September 24, 2008, D. 2008. AJ 2423, obs. Perrin, ibid. 2009. Pan. 590, obs Wolmark, RTD 2008. 744 obs. Pignarre, RJS 2008. 891, No. 1070, Dr. soc. 2009. 57, note Savatier; JCP S 2008. 1537, Allix opinion obs. Leborgne-Ingelaere ; JS Lamy 2008, No. 242-2), the Court of Cassation should emerge "a stable and uniform definition" of the concept of harassment (G. Pignarre, prev.). In this sense, in a ruling dated November 11, 2009, she called to order the trial court which makes the classification of bullying to the existence of an intent to harm its author (see the numerous decisions of judges background cited by P. Adam, Bullying, Dem. trav. Dalloz, No. 98 ff.) is the first time that the Social Chamber stated with such clarity that bullying is assessed "without the intention of its author. " Indeed, recognition of harassment requires, first, a necessarily repetitive behavior of the author and, secondly, a consequent deterioration in working conditions that may affect the health, dignity or career harassed the employee. So no place is given to malicious intent of the harasser in the definition of harassment referred to in Article L. 1152-1 of the Labour Code. The Court of Cassation then takes care to recall that Article L. 1154-1 of the Labour Code, the burden of proof of harassment does not weigh on the employee. The trial court must verify that indeed all facts reported by the employee can assume the existence of moral harassment. Only in a second step, once the initial hurdle, the employer must demonstrate that the facts established by the employee are unrelated to any harassment. By distinguishing these two texts, one defining bullying, the second adjusting his probation, the Supreme Court seems to reject the interpretation of an author, that the element of intent, central in the characterization of bullying, does not lie in the definition of harassment of Article L. 1152-1 of the Labour Code, but in Article L. 1154-1 of the Code (P. Adam, Bullying: the place [must] of malicious intent. In the interest of a combined reading of Articles L. 1152-1 and L. 1154-1 of the Code of Working Sem. soc. Lamy 2009, No. 1404). The latter considers that when the elements of facts reported by the employee are sufficient to establish a presumption of harassment, "the probation office charged to the employer falls within the scope of justification" so that "the legal debate can not [...] be an economic debate on the intent of the perpetrator of the acts considered "(p. Adam, prev.). This doctrinal interpretation is clearly refuted by the Court of Cassation, bullying is characterized by the absence of malice of the author. The solution of the Court of Cassation does not surprise because it was already implicit in other recent decisions of the Social Division (H. Gosselin, Bullying: the new deal, Sem. Soc. Lamy 2009, No. 1417 ). For example, an appeal decision has been censured for having rejected the bullying, "inoperative on grounds alleging that disciplinary actions within the power of leadership and unwillingness to harm Employer (Soc. May 13, 2009, No. 08-40610, in the same direction, June 17, 2009, No. 07-43947). Above all, excluding the element of intent can be caught by the law of certain management practices implemented by a supervisor when they occur, for a specific employee by engaging in conduct constituting a bullying. This type of "harassment" managerial has been sentenced by the Court of Cassation in a decision the same day (Soc. November 10, 2009, No. 07-45321, Dalloz News, November 23, 2009, obs. Maillard). In this case, the Director shall submit all employees at a constant pressure, and the plaintiff was specifically left out, "a lack of dialogue characterized by communication through an array and causing a depression." Thus, the manager who uses or abuses of its power of direction may be civilly punished for bullying, although it was unwilling to interfere with the employee being harassed. The desire to organize optimally functioning of the company to achieve better economic results does not allow the employer to undermine the dignity, health or careers employees dalloz source
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