The Constitutional Court upholds the application for amparo considering that there is harassment at work because the right to moral integrity of a worker, a senior State official, has been violated.
It points out that in order to assess the existence of moral harassment, it must be established that there are the following elements: intentionality, personal impairment of the harassed, and that the action responds to the purpose of vexing or humiliating the worker, or being suitable to produce this result. These are the requirements for diagnosing workplace harassment.
Existence of violation of constitutional law
After a period as a position of trust in the Council of State, an official requests reinstatement to the center where he was entitled to reserve the job. To this end, he is awarded a newly created post of adviser, with no definition of powers.
The Administration keeps you for more than a year and a half completely unemployed,without information about his duties, without assigning him tasks and without summoning him to any work meeting; a situation that was not suffered by the other officials of the entity, who were assigned specific tasks and who were dispatched individually with the Secretary-General.
Faced with this situation, the worker repeatedly requests, but without success, the assignment of responsibilities or their transfer to another destination. Therefore, in application of a protocol against workplace harassment, it denounces its situation before the Administration itself through a demand for labor harassment,which is dismissed on the understanding that, despite the existence of a prolonged postponement of work, the psychological violence due to harassment that it considers is lacking, presupposes labor harassment.
Dissatisfied with the administrative decision, the official files a lawsuit before the contentious-administrative jurisdiction, which dismisses the claim, ruling out the existence of workplace harassment as there is no evidence of mobbing that proves that the conduct has been accompanied by violent acts. It does not consider that employing a worker in jobs without work and functions, which are still unjustifiable, constitutes mobbing.
For these reasons, and on the understanding that the labour marginalization to which he was subjected has violated his constitutional rights, including the right to moral integrity (art. 15 of the Constitution); the official files an application for amparo with the Constitutional Court.
That body, reviewing its doctrine, appreciates that the iProlonged work activity to which the worker requesting amparo was subjected, does affect the fundamental right to moral integrity and the prohibition of degrading treatment (art.15 of the Constitution), so that in the case prosecuted, the the issue under discussion is whether what has occurred is a mere interference or a violation of this right.
In order to resolve it, interpreting its doctrine, the Constitutional Court declares that in order to affirm that there has been a violation of this right, it is necessary to verify, taking into account the circumstances of the case, that the following elementsare present:
(a) Whether the conduct prosecuted is deliberate or, at least, adequately connected to the harmful outcome (element of intent).
(b) If it has caused the victim a physical, mental or moral suffering or, at least, it contained the potential to do so (impairment element).
(c) Whether it responded to the purpose of humiliating, humiliating or demeathing or was objectively suited to produce or actually produced such a result (element of humiliation). In case of lack of this element,there is no degrading treatment, but the violation of article 15 of the Constitution can only be ruled out if the conduct prosecuted:
- has legal coverage (legality);
- responds to a constitutionally legitimate purpose (adequacy);
- it constitutes the least restrictive alternative (necessity) and produces more benefits on other goods or values than prejudices to the fundamental right to moral integrity (proportionality in the strict sense).
In the case prosecuted, the professional inactivity of the official has not been accidental and there are revealing indications of its intentional nature, not accidental, and the administration has not proven the concurrence of a legitimate purpose or objective.
On the contrary, with abuse of power or arbitrariness, he was marginalized at work for a long period, which presupposes the existence of contempt and offense to the dignity of the worker, which is ideal to discredit him, cause him a feeling of inferiority, low self-esteem, frustration and impotence and, ultimately, disturb the free development of his personality.
In view of all this, the intensity of the elements examined (intention, impairment and humiliation) and the circumstances of the case (the long duration of the work postponement and the absence of a legitimate reason), the Constitutional Court concludes that the Administration has treated the official as degrading and, as such, contrary to his fundamental right to moral integrity.
Furthermore, even if the vexatious component had been missing and the treatment could not have been considered degrading, in the absence of legal cover and a legitimate objective, the need for proportionality would also have been breached, and the official’s right to moral integrity would have been violated.
Therefore, the Constitutional Court declares that his right to moral integrity has been violated,so it considers the worker’s appeal and condemns the Administration to restore his right. Likewise, the previous administrative and judicial decisions, issued in the opposite direction to the latter, are declared null and void.
Mobbing tests certifying its existence
It must be assessed whether the harassing conduct is deliberate or, at least, there is causality between the conduct and the harmful outcome.
There must be indications of the intentional, not coincidental, nature of the conduct prosecuted.
It is the burden on the defendant to prove that its actions had real causes that were absolutely foreign to the alleged infringement.
2. Personal impairment
The conduct must cause or be capable of causing the victim a physical, mental or moral suffering.
3. Vexatious purpose
The action must be appropriate to humiliate, humiliate or debase the victim, without it being necessary for this humiliation to take place. If there has been no harassment, there will be no degrading treatment, but the violation of the victim’s right to integrity can only be ruled out when the conduct is prosecuted (art. 15 of the Constitution):
- it has legal coverage and serves a legitimate constitutional purpose (legality);
- constitutes the least restrictive alternative (necessity);
- it produces more benefits on other goods or values than harms the fundamental right to moral integrity (proportionality).
Real case: my company has been sued for workplace harassment
Let’s take as an example the following situation:
One of its employees alleges that he is a victim of workplace harassment, and requests to terminate his contract with the right to compensation for workplace harassment and unfair dismissal.
His company receives the lawsuit for workplace harassment of said worker, who claims to be a victim of mobbing.
Would it be valid for the worker to request the termination of his contract claiming maximum compensation for workplace harassment? How should I act and how can I avoid this type of situation?
If an undertaking seriously fails to comply with its obligations, the workers concerned may apply for the termination of their contract with the right to compensation for unfair dismissal.
This would happen, for example, if wages are not paid for more than three months, or if the company fails to comply with its obligations in terms of occupational risk prevention and this poses a serious risk to its employees.
If an employee suffers psychological violence at work for offensive or humiliating acts (moral harassment or mobbing),he could request the termination of his contract with the right to compensation. Of course, the following requirements should be met:
- The situation of moral harassment must occur systematically or over time.
- It is necessary that there is intentionality in the person who exercises the mobbing (it can be either a hierarchical superior or even a co-worker).
If you receive a mobbinglawsuit,the first thing you should keep in mind when acting is to check if the following arguments can be alleged:
- The employee may have applied for Temporary Disability and sick leave for workplace harassment,but the leave may have been recognized for common contingencies. Since mobbing can be considered an accident at work, if the employee has not contested the qualification of this leave, he will have tacitly accepted that temporary disability is not related to work, and therefore cannot be considered as such.
- Mobbing may have been interpreted as such by the employee due to work stress (for example when high workload peaks occur). You must bear in mind that these situations do not constitute workplace harassment.
Of course: you will not be able to claim that you have already spoken to the person responsible, or that you were unaware of the worker’s harassment situation. The regulations on the prevention of occupational risks oblige you to avoid all these situations.
As of now…
To prevent this type of situation, you must develop a protocol for prevention and action against harassment and make it known to all employees.
Activate it whenever necessary and take the necessary measures to avoid this type of situation.
How to prove workplace harassment?
In order for someone to be accused of harassment or mobbing at work, mobbing evidence is needed to prove that situation, as well as that it has happened more than once.
The most effective is to record workplace harassment,since a video or audio recording is proof that proves the existence of mobbing. In addition, if this recording is only used to demonstrate mobbing at work and defend oneself in a judicial proceeding, it will be fully valid, since it will not violate the right to secrecy of communications.
Beyond the recordings, there are other more classic measures to demonstrate workplace harassment, such as the interrogation of the harassing person, the statement of the harassed worker, the statement of witnesses, the medical/psychological expert report in which the clinical diagnosis of the harassed worker and the cause of it is delimited, the minutes of the Labor Inspectorate and emails, among others.
If you have any of this evidence, you will be in a position to file a lawsuit for workplace harassment,through the different existing legal procedures.