When are we really facing a crime of workplace harassment? - Sagué Abogados penalistas
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When are we really facing a crime of workplace harassment?

When are we really facing a crime of workplace harassment?

According to the International Labor Organization, 80 percent of the working population has suffered a situation of harassment during their working life, however, only 5 percent of them have actually reported the situation. In Spain, workplace harassment affects 15 percent of workers.

As we can see, harassment in the workplace, also known as moobinghas become a steadily growing phenomenon in recent years that not only threatens dignity in employment, but also violates the fundamental right to moral integrity of the worker, protected by Article 15 of the Spanish Constitution.

For this reason, since 2010 our Penal Code has had a criminal offense that especially criminalizes the practices of moral harassment of workers, the so-called crime of harassment at work, regulated in Article 173. Specifically, the aforementioned article punishes the following with a six months to two years of imprisonment to “.those who, within the scope of any labor or civil servant relationship and taking advantage of their relationship of superiority, repeatedly perform hostile or humiliating acts against another person that, without constituting degrading treatment, constitute serious harassment against the victim“.

Thus, in order to know whether we are truly facing a situation of workplace harassment sufficiently relevant for criminal law, we must first verify whether in the employment relationship linking the two parties, the victim occupies a position of authority in the workplace. inferiorityThe crime excludes conduct between co-workers who occupy the same hierarchical rank within the company.

Secondly, the criminal offense requires that the conduct be unequivocally humiliating, degrading or demeaning. In this regard, the European Court of Human Rights defines the concept of degrading treatment as “treatment likely to create in the victims feelings of terror, anguish and inferiority such as to humiliate them, debase them and, if necessary, break their physical or moral resistance”.

In this sense, and without pretending to create a closed list of behaviors, our jurisprudence considers that the following behaviors constitute moobing “.attacks and taking measures against the passive subject (reduction and limitation of professional responsibilities), social isolation of the employee (change of location, limitation of possibilities to communicate with others, among others), attacks on private life, verbal aggressions through assertions and humiliating and insulting shouting and spreading rumors and criticism among the passive subject’s colleagues”.It has also admitted as typical the results of depression with the need for sick leave, the considerable decrease in the worker’s self-esteem as a consequence of the actions to which he/she is subjected, constant nervousness in the work environment and the suffering of insomnia.

Finally, the aforementioned crime also demands a temporal requirement: the conducts of persecution and harassment must be reiterated and maintained over time in such a way that, even though individually the acts may seem minor, as a whole they acquire real gravity and criminal relevance. Logically, we are not referring to a mere occasional tension at work or a bad atmosphere in the office, but to a systematic situation of degrading treatment by a hierarchically superior person that causes psychological harm to the victim.

Regarding the means of proof to accredit the harassment, it is evident that we are dealing with a crime that presents certain evidentiary difficulties, since, on the one hand, the active subject will have tried to leave no documentary trace of his behavior, and on the other hand, it is difficult for coworkers to testify against their superior. Therefore, the key to the trial will undoubtedly be found in the victim’s statement and the medical and psychological expertsThe credibility, persistence and coherence of the victim’s story, corroborated through the corresponding expert reports, will constitute highly relevant prosecution evidence to undermine the presumption of innocence of the accused.