The Law of March 29, 2023, amending the Labor Code to introduce a regulation to protect workers against mobbing entered into force on April 9, 2023. This finally created a real legal framework for mobbing, whereas previously only the agreement of June 25, 2009, concluded between the social partners, contained recommendations on the subject.
THE NEW DEFINITION OF MOBBING
The law of March 29, 2023 contains a new definition of mobbing in Article L.246-2 of the Labor Code: "any behavior that, by its repetition or systematization, affects the dignity or the psychological or physical integrity of a person."
Communication in connection with or due to work by whatever means, and even outside normal working hours is an integral part of the performance of work.
THE EMPLOYER'S OBLIGATIONS
The law imposes several duties on the employer’s side to address mobbing :
- The employer must ensure that any act of harassment against its employees of which he/she is aware of, is stopped immediately.
- The employer, after informing and consulting the staff delegation or, in the absence thereof, the entire workforce, shall determine the measures to be taken to protect employees from harassment. These measures must be adapted to the nature of the activities and the size of the company, as follows:
o Determine what resources will be made available to victims.
o Investigate incidents quickly and impartially.
o Raise awareness among employees and managers about handling process and sanctions.
o Inform the staff delegation or, if not present, the entire staff of the employer's obligations, o Inform and train employees.
WHAT IF MOBBING PERSISTS?
THE ROLE OF ITM (INSPECTION DU TRAVAIL ET DES MINES)
If harassment at work persists despite the measures taken by the employer, or if the employer fails to take appropriate action, the ITM may be called by the affected employee or the staff delegation affected with the employee’s consent.
The ITM is responsible for investigating the case and hearing from the affected employee who feels he or she is a victim of mobbing at work, the alleged perpetrator, and any other person the ITM deems useful. Following the hearings, the ITM shall prepare a report with recommendations and suggestions for action to stop the harassment. This report shall be forwarded to the employer no later than 45 days after receipt of the file.
If acts of harassment are present, the Director of the ITM shall order the employer to take the necessary measures to stop the acts of harassment within a time limit set according to the report.
If the order is not complied with within the set time limit, the Director of ITM may impose an administrative fine of up to 25,000 euros on the employer.
THE ROLE OF THE STAFF DELEGATION
The staff delegation plays an important role in companies with more than 15 employees, as it is responsible for protecting employees from harassment in the context of labor relations and can propose to the employer any preventive measures it deems necessary.
The staff delegation committee is authorized to assist and advise the employee who is a victim of mobbing. It is mandatory to maintain the confidentiality of the facts of which it becomes aware in this capacity, unless it is released from this obligation by the employee who is a victim of harassment.
THE PROTECTION AFFORDED BY THE EMPLOYEE
Workers who are victims of mobbing at work are protected to a certain extent.
An employee who has been bullied cannot suffer reprisals for reporting the behavior of the employer or another line manager, colleagues or external persons associated with the employer, or for reporting incidents of harassment.
It should be emphasized that any act of retaliation against an employee is automatically null and void by nullity by operation of law.
If an employee's work contract is terminated despite the protection afforded to him or her, the employee may:
- either apply to the President of the Labor Court to declare the termination null and void and order his/her continued employment/reinstatement in the company within 15 days,
- or sue for abusive termination of the employment contract, with the possibility of obtaining special damages for harassment in addition to damages for their dismissal.
In addition, the law (article L.246-6 of the Labor Code) provides that an employee who has been the victim of mobbing may refuse to continue to perform the employment contract and resign with immediate effect based on gross misconduct on the part of the employer.
If the employer, the employees or even the company's customers and suppliers fail to comply with the legal provisions against mobbing, they may be subject to criminal sanctions, ranging from 251 to 2,500 euros, in accordance with Article L.246-7 of the Labor Code.
IN CASE OF HARASSMENT, YOU ARE NOT ALONE. CONTACT YOUR STAFF REPRESENTATIVES OR ALEBA, AND TOGETHER, WE WILL FIND AN APPROPRIATE SOLUTION.
A new legal framework adopts sanctions and new provisions.