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DOI: 10.5553/EELC/187791072022007003004

European Employment Law CasesAccess_open

Case Reports

2022/22 Liability for harassment and bullying in the workplace (DK)

Keywords Health and Safety, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
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Christian K. Clasen, "2022/22 Liability for harassment and bullying in the workplace (DK)", European Employment Law Cases, 3, (2022):124-127

    An employer has been held liable for not preventing and tackling a group of employees’ bullying of another employee contrary to the employer’s obligations under the Danish Working Environment Act.

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    • Summary

      An employer has been held liable for not preventing and tackling a group of employees’ bullying of another employee contrary to the employer’s obligations under the Danish Working Environment Act.

    • Legal background

      The general principles for managing safety and health at work are laid down in the Framework Directive (1989/391/EEC). The Directive imposes on employers a general obligation to ensure the safety and health of workers in every aspect related to the work and to take the measures necessary for the safety and health protection of workers. This includes protection of the workers’ mental health which, among other things, is also reflected in policies and framework agreements between European social partner organisations.
      In Denmark, one of the legislative steps to ensure compliance with the Directive was taken in 2013 when the employer’s obligation to protect workers’ mental health was clarified in the Working Environment Act. In 2020, an executive order was adopted specifically regarding the employer’s obligation to ensure that work at all stages is planned, organised and carried out in such a way that the effects on the mental working environment are fully adequate in terms of health and safety. This includes prevention of ‘offensive acts’, including sexual harassment and bullying.
      If the employer does not comply with its duties and obligations, it may be liable to pay, for instance, compensation for loss of earning capacity or pain and suffering.

    • Facts

      The case at hand concerned a social and healthcare worker employed at a residential home. She had been employed for several years but had experienced a deterioration in the physical and mental working environment. According to the social and healthcare worker, she had experienced harsh communication, was accused of lying and was mocked when making suggestions.
      This continued for a six-month period until the social and healthcare worker entered into a severance agreement with the employer based on the fact that the employer was contemplating dismissal of her on grounds of sickness absence and cooperation issues.
      The social and healthcare worker reported the psychological impact of the workplace bullying as a work-related illness to Labour Market Insurance (AES). Labour Market Insurance assessed that the social and healthcare worker suffered from an unspecified stress reaction as a consequence of the bullying. She was assessed as having a permanent injury and a substantial loss of working capacity caused by her work, the decisive factor being the bullying by her colleagues.
      The social and healthcare worker’s trade union claimed compensation from the employer for pain and suffering, compensation for loss of earnings and compensation for loss of earning capacity. The trade union contended that she had been bullied and that the management had known about this, but had failed to intervene, and for this reason the employer had breached its obligation to ensure an environment free of bullying and harassment.
      On the other hand, the employer submitted, primarily, that the severance agreement was made in full and final settlement of all financial claims. The employer further submitted that the social and healthcare worker had not established that she had been subjected to bullying and harassment, for example, because she had not communicated this to the management, and that her sick leave was due to issues following a physical industrial injury. The management had tried to solve the challenges arising from the workplace communication in an appropriate manner by weekly staff meetings and seminars.
      During the trial – both in the District Court and the High Court – testimony from the social and healthcare worker’s colleagues was presented. Several colleagues confirmed that they had witnessed the bullying in terms of condescending communication etc.

    • Judgment

      The District Court found that the issues of bullying and harassment had not been discussed when negotiating the severance agreement. Therefore, the social and healthcare worker was not prevented from claiming damages from the employer even though it was stated in the agreement that “the matter is considered closed and cannot be reopened”.
      Based on the witness statements, among other things, the District Court initially found that the social and healthcare worker had suffered an industrial injury due to workplace bullying.
      Subsequently, the District Court ruled that the management knew that there was a poor working environment with cases concerning personal conflicts and condescending communication, which was substantiated by the employees’ responses to the health and safety risk assessment. In regard to the bullying issue, the District Court also found that the management knew about this because of several inquiries from the health and safety representative. In spite of this, the employer had not taken sufficient general measures or any specific measures to stop the bullying, and the District Court therefore ruled that the employer was liable to pay damages.
      On appeal, the High Court agreed with the District Court, for example, by referring to the fact that the witness statements given during the proceedings were supported by statements to Labour Market Insurance shortly after the parties had entered into the severance agreement. The High Court further referred to the fact that the team manager had attended some of the meetings at which the social and healthcare worker had been bullied without intervening effectively.
      The High Court found it established that the mental health problems had triggered the social healthcare worker’s sick leave that led to the conclusion of the severance agreement. Against this background, the High Court upheld the judgment of the District Court.

    • Commentary

      With the public debate following #MeToo and the impact of the Covid-19 pandemic on the working life of many people, there has been an increased focus on mental health in society in general but also in the workplace. This is also reflected in the recent EU Strategic Framework on Health and Safety at Work 2021-2027 with one of the key objectives being an EU-level initiative related to mental health at work.
      From a Danish perspective, this is one of the first cases in which an employee has succeeded with a claim for damages resulting from a poor mental working environment. It is worth noting that this was the outcome even though the employer had initiated various general measures to improve the working environment.
      The ruling emphasises the employer’s obligation to ensure an environment free of harassment and bullying, both generally and specifically in relation to employees who express challenges in this regard.
      That being said, the judgment is based on the specific circumstances of the case and must presumably be seen in light of the fact that the majority of the witness statements, including statements from management representatives, supported the fact that there was a poor mental working environment, for example, resulting from disagreement between the employees, and that several witnesses explained that harsh workplace communication had particularly affected the social and healthcare worker. This may not be the case in other situations of complaints of a poor mental working environment, especially if the bullying is of a less serious nature.

    • Comments from other jurisdictions

      Finland (Janne Nurminen, Roschier, Attorneys Ltd): The Finnish Occupational Safety and Health Act provides a special obligation for the employer to intervene in harassment or other improper action at work after receiving information about it. According to the law, the employer has an obligation to manage and supervise the work in such a way that the employer can intervene effectively and in sufficient time when improper behaviour occurs. Improper action at work must be managed in the same way, as it otherwise may endanger the employees’ health. The employer must systematically monitor the workplace’s risk factors which include finding out and identifying hazards and elements of danger that might occur at work. This also includes psychological stress factors.
      The Occupational Safety and Health Act obliges the employer to sufficiently investigate, monitor and intervene in psychological stress factors, such as bullying, i.e. the employer has an obligation to start a process regarding reasonable adjustment in order to minimize or eliminate stress factors. The level of action required depends on the circumstances.
      In this case, the employer had organized weekly staff meetings and seminars in order to intervene in inappropriate behaviour amongst its employees. This was deemed to be an insufficient measure by the Danish High Court. Considering the statutory health and safety obligations set by the Finnish legislation, a Finnish court would probably have considered the employer’s actions insufficient in a similar case. In this case, it was deemed that the management had known about the poor working conditions but did not take sufficiently effective measures to reduce the danger to the employee’s health. In Finland, when taking an employee’s state of health into account, it would be fairly certain that the employer’s measures would not be considered sufficient. The problem persisted even after the measures had been started, so their effectiveness was not appropriate. In Finland, such negligence from the employer’s side could also have resulted in criminal sanctions.
      It can be said that the issues related to psychosocial stress in the workplace are in general quite topical in Finland as a result of, for example, the rising sickness absence rates due to mental illness. Currently, there is also a pending legislative project regarding the amendment of the Occupational Safety and Health Act. The proposal would amongst other things specify the employer’s obligation to take into account factors relating to mental workload as a part of the mandatory investigation of work hazards. This will also include factors related to the social functionality of the work community.

      Germany (Pia Schweers, Luther Rechtsanwaltsgesellschaft mbH): Like in Denmark, also in Germany the risk of mental stress at work must be prevented by measures taken by the employer. This had already been included in the German Occupational Health and Safety Act (Arbeitschutzgesetz, ‘ArbSchG’) in 2013. However, exposure to bullying is only protected in this respect if the bullying has health consequences, similar to Danish law and as it was in the Danish case. In this case, the employer is obliged to prevent the health hazard. If it does not do so and thus endangers the employee’s health, the employee can claim damages against the employer.
      In addition, claims for damages under the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, ‘AGG’) are possible. This is because according to the AGG the employer must protect the employee from harassment. If the employee suffers from a mental illness, e.g. as a result of mobbing, and continues to be harassed, they can claim damages against the employer.
      Irrespective of occupational health and safety measures, the employer in Germany may also be obliged to pay damages under general civil law claims insofar as the employer or management violate the employee’s personal rights through mobbing. There are already court decisions on this in Germany. However, there has not yet been – as far as can be seen – a comparable decision in Germany in which the employer was obliged to pay damages because occupational health and safety measures under the ArbSchG were not taken to prevent mobbing. This is presumably against the background that corresponding claims against the employer can be asserted via other legal regulations.
      However, this being said, a similar decision in a similar case in Germany does not seem so far-fetched.

      Greece (Effie Mitsopoulou, Lawspace): Similar to Denmark, the #MeToo has widely affected public opinion in Greece. Law 4808/2021, among various other labour law amendments, has introduced important reforms in several areas of Greek employment law including prohibiting any form of violence and harassment in the workplace, including violence and harassment due to sex, as well as sexual harassment. Companies and businesses which employ more than 20 employees are under the obligation to establish anti-harassment policies. It also places the burden of the proof on the employer who has to prove that the allegations on harassment invoked by the employee are not substantiated. If the employer does not comply with such obligations it may be liable to pay administrative fines and, should this be the case, criminal proceedings could be initiated.
      In the case at hand, we consider that the Greek courts would have come to the same decision.

      Romania (Teodora Mănăilă, Andreea Suciu, Suciu – Employment and Data Protection Lawyers): The case is of great interest not just because of the issue of mental health and how the employer failed to ensure a safe and stable working environment, but also from the point of view of the value of the severance agreement.
      No additional information is provided on how the District Court concluded that the issues of bullying and harassment were not discussed when the severance agreement was negotiated even though the agreement appeared to have included a more general clause specifying that “the matter is considered closed and cannot be reopened”.
      As a general rule of law, the parties’ agreement provides the legal framework that regulates all current and future matters between the employer and the employee. In some cases, not all pending aspects are listed exhaustively, and a more general clause is agreed similar to the one used by the employer in this case.
      We do recognise that the parties can set limits in their agreements, however, in the case of employment contracts, the settlements, in general, cover all direct or indirect aspects connected to the employment relationship, thus, being considered one of the main risk free mechanisms for terminating a contract. The case described above provides a very new and different perspective of the limits of such agreements. However, in the absence of additional information it is difficult to reach a final conclusion but rather to keep the case at hand as a cautionary tale.
      With regard to the employer’s liability following its passive behaviour manifested in relation to its work environment, the case is a first of its kind. The employer was sanctioned although various general measures to improve the working environment were adopted. Such conclusion underlines the fact that without specific actions or measures, ‘on paper’ compliance becomes irrelevant in the Court’s analysis.
      The fact that the Court found that such environment had led to a case of industrial injury is of much greater interest. From a Romanian law point of view, we doubt the case would have been considered a case of occupational disease but rather viewed as a compensatory case, where the employer would have been obliged to pay moral damages equivalent to the suffering caused by the bullying but never considered to have affected the employee’s working ability.
      On a more general level, mental issues connected to stress, burn-out or traumatic stress are yet to be considered elements that affect the work capacity of people in a manner that can be documented. Therefore, in the absence of specific medical evidence, such conclusions appear not to be available to Romanian courts.

      Subject: Health and Safety
      Parties: A Danish region – v – FOA acting for a member
      Court: Vestre Landsret (Danish Western High Court)
      Date: 16 December 2021
      Case number: BS-1858/2021-VLR
      Hard copy publication: UfR.2022.1042
      Internet publication: Available from info@norrbomvinding.com


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