Dismissal, vexatious measures, aggressiveness, denigration, unjustified criticism, and bullying are all situations that can be considered moral harassment in a French workplace.
But how can you be sure? What may start as a simple disagreement between colleagues or an employee and their superior can escalate into real acts of psychological harassment. The absence of dialogue or poor communication is often one of the causes of these abuses.
If that happens, how can you find the strength to speak out without fear of retaliation or losing your job? What evidence should you show to prove it? Who can you turn to? These are all questions that an employee subjected to workplace harassment frequently asks themselves.
Instead of pursuing your rights in court, what if the better option was to resort to mediation? Once you determine if harassment exists, that may be the best path to resolving the conflict.
What Is the Definition of Moral Harassment at Work?
The French Labour Code (Article L. 1152-1) defines moral harassment as:
“Repeated acts which have as their object or effect a deterioration in the working conditions of the employee, likely to infringe his or her rights and dignity, to alter his or her physical or mental health or to compromise his or her professional future.”
Breaking that down into its main elements, to claim moral harassment at work:
- – The employee must be the object of repeated acts, not only a single instance.
- – The repeated acts negatively affect and degrade the employee’s work environment.
- – The repeated acts hurt the employee’s dignity, violate their rights, or endanger their health.
- What Response Should a Harassed Employee Take?
- First, the employee must report the moral harassment to their employer so the employer can put an end to the misconduct and comply with its legal obligation to preserve the mental health of its employees. Under French law, employers are required to prevent situations of moral harassment.
- Also, the Labour Code protects harassment victims against possible retaliation (disciplinary sanctions including dismissal or other adverse actions) if they report the misconduct to their employer.
- Next, the employee can alert someone other than the employer. If the employee does not wish to report the harassment to their employer, they can notify the company’s representatives, if any, or contact the labour inspectorate or an occupational physician. However, it is preferable to alert the employer because of the legal obligations they must follow after receiving the harassment report.
- Reporting is not limited to the harassed employee. When any employee witnesses acts of moral harassment against another worker, they must alert the employer. Remember, the employer must respond even if the report seems unfounded. The Labour Code protects witnesses of acts of moral harassment who report the misconduct, known as whistleblowers.
How Can You Prove You’ve Been Harassed?
Various kinds of evidence can be offered to prove moral harassment has occurred, including emails, affidavits, letters, and other text, audio, and video recordings.
There are no restrictions in this respect. The labour courts even consider audio recordings captured without the other person’s to be admissible under certain conditions.
What Is the Employer’s Role?
What should an employer do when one of his employees complains of moral harassment or when alerted to such behavior?
As soon as an employer receives notice of moral harassment within the company, whether proven or not, the employer has an obligation to launch an internal investigation. The investigation must be impartial, confidential, and systematic required. Otherwise, the employer may be liable for failing to respond, even if the harassment is not proven.
The investigation enables the employer to decide whether the alleged behavior is professional or not and to put an end to workplace conflict using corrective measures.
The employer may also call on a mediator specializing in conflict resolution to intervene in cases of psychological harassment at work.
Mediation Can Be an Effective Tool for Managing Conflicts and Addressing Psychosocial Risks.
The Labour Code expressly allows mediation in cases of moral harassment, both between a manager and employee and between employees. Interestingly, Article L.1152-6 states that a mediation procedure may be initiated either by the victim of psychological harassment or by the person accused of the harassment. The employer may also propose it.
Mediation procedure is governed by the Labour Code, which provides that:
- The choice of the mediator is subject to an agreement between the parties.
- After determining the parties’ relations, the mediator will attempt to reconcile the dispute and make written recommendations for ending the harassment.
- If reconciliation fails, the mediator must inform the parties of the possible sanctions and the victim’s procedural guarantees.
Because of its unique approach, mediation offers many advantages to all parties – the employer, the victim, and the harasser.
Mediation Is a Secure and Structured Tool
Even if the employer is obligated to address harassment in the workplace, mediation is a more secure and formal approach to dispute resolution for everyone involved. It also ensures all parties are heard; a competent mediator will gather all the information and evidence and listen to the various arguments and accounts fairly and humanely.
The Advantages of Mediation to Resolve Workplace Harassment
Mediation offers several advantages in resolving moral harassment claims.
- The mediator is an external and impartial third party, outside the situation and free of bias.
- Mediation is confidential, encouraging parties to speak and engage in dialog. Unlike courtroom proceedings, the mediation process is entirely confidential. The mediator does not and should not give feedback to the employer who engages them. Indeed, what is said in mediation does not leave the room. Despite those procedural restrictions, what has been publicly disclosed or witnessed cannot be considered confidential.
- Mediation can be implemented very quickly. This speed is necessary for situations where workplace moral harassment allegations must be resolved expeditiously because of the psychosocial risks involved.
- The cost of mediation is very low, not only compared to traditional litigation but also relative to potential damages if harassment is allowed to continue, its impact on morale and operations, the victim’s repeated sick leave, and other costs.
- Mediation makes it possible to re-establish dialogue between the victim and the perpetrator, which is essential to a healthy workplace and avoiding employee turnover.
Mediation Allows the Employer to Offer an Appropriate Response to Moral Harassment Claims
If moral harassment is proven, mediation will make it possible to identify and end the acts that have taken place pursuant to the obligation the law imposes on the employer.
If moral harassment is not proven, mediation nevertheless fosters dialog between employees. Too often, thinking that a problem exists, employers propose coaching or other counseling efforts when moral harassment is unfounded. Coaching and counseling focus on the person and not the relationship. By comparison, mediation seeks to repair and restore damaged relationships.
Employers and employees should strongly consider mediation a valuable tool to address and resolve moral harassment at work, whether or not it can be established. Because so few companies resort to mediation, however, a change of mindset is needed!
If you are a victim of workplace harassment, consult an experienced attorney to discuss your rights and remedies.
Karen Durand-Hakim
Attorney at Law
