UMR 5114 CNRS – University of Bordeaux – France

UMR 5114 CNRS – University of Bordeaux – France Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective 2013 JILPT International Seminar on Workplace Bullying and Harassment Tokyo, February 27, 2013 Loïc Lerouge

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 Reminder Framework Directive dated 12 June 1989: General Obligation of Prevention (Health and Safety Act of 31 December 1991) CJEC 15 November 2001 Commission c/ Italy: "Every risk must be prevented" Question of the reach of the general obligation of prevention through the strict obligation to ensure health and safety FRANCE BELGIUM UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 1998 Marie-France Hirigoyen,, Le harcèlement moral. La violence perverse au quotidien, Éditions La Découverte et Syros, Coll. Pocket, 1998, 252 p. Thisbook triggered a vast public debate in France, by describing a phenomenon that workers were aware of but unable to put into words UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 • Two draft laws proposed by Georges Hage in 1999 (Assemblée Nationale) and Roland Muzeau in 2000 (Sénat) • CES (Michel Debout) report • One of the major issue was whether the concept of "mental health" should be introduced into the French Labour Code or not Social Modernization Act dated 17 January 2002 instituting a legal provision to combat moral harassment at work UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 Three PARTS and a comparison with Belgium in the same time • Moral Harassment under the regime of the Social Modernisation ActUnder the regime of the Wellbeing Act in Belgium • Some Case Lawswhichprecise the Moral HarassmentWhat about Belgium? • Penalties UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 • Moral Harassment under the regime of the Social Modernisation Act Definition of moral harassment in the Labour Code (+ Criminal Code and Public Service) Art. L. 1152-1 Labour Code "No employee shall suffer repeated actions which have for object or for effect a degradation of his working conditions likely to violate his rights and his dignity, to alter his physical and mental health or to compromise his professional future" new progress relating to occupational risks, in particular through the consideration of the phenomenon of bullying and professional legal recognition Compensation of the effects of Moral Harassment Social Security Law UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 Labour Law: beyond provisions relating moral harassment • Social ModernizationAct: définition (art. L. 1152-1 CT) • + • Employer general obligation of prevention: the employer has to take the necessary measures to ensure safety and protect the physical and mental health of workers (art. L. 4121-1 CT) + to take into account moral harassment in a coherent prevention plan (art. L. 4121-2 CT) • Moral harassment: the employers have to take all necessary measures to prevent moral harassment (art. L. 1152-4 CT) • The employer has also to display the provisions relating to moral harassment and the penal santions(art. 1321-2 CT) UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 • Health and Safety Committee: contribute to the protection of the physical and mental health of workers in the establishment, including those employed by outside firms(art. L. 4612-1 CT). • Occupational Physician: may propose that the employer provide individual accommodation measures for workers whose mental health requires special care (art. L. 4624-1 CT) • Worker Representatives: have a "right to act as whistleblowers". If they witness, or are informed by an employee, that, in the workplace, there is a violation of human rights, the right to physical or mental health, or individual freedoms that is not justified by the type of work, nor by the intended objective, they must immediately inform the employer (art. L. 2313-2 CT) UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 • Article L. 1222-1 of the Labour Code: contracts must be performed in good faith • In application of this principle, employers must implement measures to protect workers' health, to ensure that their health is not altered by the acceptance of the contractual employment relationship • From the standpoint of moral harassment, it strengthens the mobilisation of the courts concerning the requirement that the employment contract has to be performed in good faith UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 The question of the Burden of Proof • The employee who complaints about moral harassment has to establish the facts which support the presumption that harassment has occurred(art. L. 1154-1 CT) • It is then up to the defendant to prove that the actions that led to the complaint did not constitute harassment and that the decision was justified by: "objective elements that had nothing to do with harassment"(art. L. 1154-1 CT) • The judge then forms his own opinion and may order each step to investigate the situation in order to take a decision UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 The immunity of employees who denounce moral harassment Art. L. 1152-2 CT • Protecting workers and facilitating the report of moral harassment incidents • Employees may not be penalised, dismissed, or subjected to discriminatory measures for being or refusing to be subjected to repeated instances of moral harassment, or for being witness of or reporting such actions (art. 1152-2 CT) • The article L. 1152-3 CT cancels any termination of an employment contract due to a lack of knowledge of the definition of moral harassment at work or of the protective measures applicable to employees under these circumstances UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 The Médiation Procedure art. L. 1152-6 CT • Procedure initiated by any person in an enterprise who considers being victim of moral harassment or by the person accused of that action • Aim at reconciling the parties when the circumstances related to moral harassment occurred in the workplace, "bringing together the parties" • Procedure perceived as an innovation, but no much used UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 Culture of médiation stronger in Belgium => less litigations • Law of 11 June 2002 on protection from violence • and moral or sexual harassment at work • Burden of proof is the same than in France, it is up to the defendant to prove that abuse or moral or sexual harassment at work did not take place • A legal definition without specific tools in Belgium The Belgian law on moral harassment at work focuses on three points: (1) prevention, (2) the actions open to the victim, (3) measures for protecting workers who report that they have been victims of harassment UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 Definition of the law of 2002 inserted into the law dated 4 August 1996 on wellbeing at work Article 32(iii)defines moral harassment as: "several abusive acts, which may be similar or different, external or internal to the company or institution, that continue over a period of time, with the aim or effect of violating the personality, dignity, or physical or psychological integrity of a worker or another person (…), in the performance of their work, jeopardising their employment, or creating an intimidating, hostile, degrading, humiliating, or offensive environment, manifested, in particular, by words, intimidations, actions, gestures, or written texts. These behaviours may be related, in particular, to religion or other beliefs, handicaps, age, sexual preferences, gender, race, or ethnic origin".This last sentence integrates "discriminatory harassment", which was not included in France until 2008. Employers must implement the necessary measures to promote the workers' welfare in the performance of their work. They must apply a general prevention policy for that purpose, particularly by introducing measures aimed at combating violence and moral or sexual harassment in the workplace UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 • In Belgium, employers must appoint a prevention adviser specialised in psychosocial aspects of work, including abuse and moral or sexual harassment at work. • A comparison with the French system on this point reveals a weakness due to a lack of specialists trained in psychosocial risks, especially in the Health and safety committee. • Employer can also appoint an external prevention adviser for reinforcing their action. • Enterprises with fewer than 50 employees must call on external prevention adviser services UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 • With the agreements of all the Health and Safety Committee members, the employer can appoint “trustworthy people” • The task of trustworthy people is to support the prevention adviser in the fight against violence, harassment and sexual harassment at work • Their presence and involvement in the search for a solution informally help to limit the number of substantiated complaints and resolve harassment situations UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 Keyrole of the Courts 2. Some Case Laws which precises the Moral Harassment Strict Obligation to Ensure Health and Safety at Work Cass. soc. 28 feb. 2002; Cass. AP 24 June 2005 The employer cannot be exonerated from his liability even if they have implemented measures to prevent harassment or applied penalties to offenders Even if other factors than the fault of the employer contributed to the prejudice; i.e. fault of the employee; The Court of Cassation held the employer liable for the actions of his subordinate towards the victim The Court of Cassation considers that these actions should not have come true UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 Moral Harassment and Strict Obligation to Ensure Health and Safety • "Propara" case on 21 June 2006 • Quite remarkable ruling • The employer is in charge of an obligation to ensure safety regarding protection of the health and the safety of the workers in the company, in particular regarding moral harassment and the absence of fault of its part cannot exempt him from his liability The employer's obligation of results in this matter, thus paving the way for integrating mental health as well as physical health in the employer's obligation of results to ensure the workers' safety UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 • An employer who takes no action although he is aware that an employee is responsible for moral harassment of a subordinate may be ordered to pay damages for "disloyal non-performance of the employment contract" Cass. soc. 7 February 2007 • An employer may be liable for a breach of an employment contract if he has not taken the necessary steps to prevent moral harassment of one worker by another Cass. soc. 21 February 2007 UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 Cass. soc. 10 november 2009 Two rulings: The court's interpretation went beyond moral harassment. The courts extended this legal instrument, intended to combat a phenomenon considered "perverse", to cover the employer's ability to organise and manage the workers The Court of Cassation confirmed that moral harassment could occur without malicious intent of the perpetrator The Court of Cassation considered that some management methods used repetitively could constitute "moral harassment". Is article L. 1152-1 of the French Labour Code, on the legal definition of moral harassment, the appropriate legal tool for stopping certain types of work organisation?Moral harassment does not cover every situation UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 Cass. soc. 3 february 2010 Two rulings: Once again, the Court of Cassation based its ruling on the employers' general obligation of prevention (article L. 4121-1 of the French Labour Code) The employer was liable when an employee was victim of physical or moral abuse in the workplace, including moral or sexual harassment, even if measures had been implemented to stop these actions Thus, employers must implement measures to prevent or avoid any action likely to be a risk for the mental health The objective is to encourage employers to implement effective policies to prevent psychosocial risks in their companies to avoid liability under this heading UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 The Courts in Belgium highlights the harassment factors that have an influence on the occurrence of the problematic situation Those risk factors are organizational communication problems, insufficient monitoring of decisions, confusion of roles, heavy workload, unequal distribution of tasks, inadequate training, restructuring The repetition of actions is required The malicious intent of the perpetrator also even if it is not a legal requirement for recognizing moral harassment UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 3. Penalties • Cass. soc. 6 June 2012 • The employees victims of moral harassment can be indemnified twice • The victim can accumulate a compensation for the undergone actions and a compensation for negligence of the employer in his obligation of prevention • The victim must prove the two damages • Besides labour law, the Social Modernisation Act instituted specific criminal provisions in the Criminal Code • The same legal definition • Since the reform of August 6, 2013, the article 222-33-2 punishes Moral Harassment by a penalty of: • Two years imprisonment + 30,000 Euro fines • Eight days of imprisonment and 2,751 Euros fines / One year and 5,500 Euros Fines • (Belgium) UMR 5114 CNRS – University of Bordeaux

Workplace Bullying and Harassment in France and Few Comparisons with Belgium: a Legal Perspective Loïc Lerouge Tokyo – Japan – February 27, 2013 What about the indictment of the former president of France-Telecom? • Didier Lombart was the President of France Telecom during the series of suicides • He and two of his Directors (Olivier Barberot and Pierre Wenes) has been summoned by an examining magistrate ("Juge d'instruction", judge who heads the criminal investigation) • Serious and concordant indications concordant they participated as perpetrator or accomplice the commission of a criminal offence (art. 82 Criminal Procedure Code) : they endangered life of others • In December 2009, based on the Labour Inspector report, a trade-union (SUD-PTT) sued the head of France Telecom with a criminal complaint about the establishment of an institutional moral harassment leading to "endangering the lives of others" (art. 223-1 Criminal Code) Not a "Collective Harassment" Harassment deals with individual cases Reinforcing the criminal Way Endangering the lives of others, incitement to commit suicide, involuntary homicide, submission to degrading working conditions Better cooperation between Labor Inspection and prosecutor UMR 5114 CNRS – University of Bordeaux

THANK YOU FOR YOUR ATTENTION! ALIGATO GOZAÏMASU! UMR 5114 CNRS – University of Bordeaux Université Bordeaux IV, avenue Léon Duguit, 33608 Pessac cedex, France Phone: 33 (0)5 56 84 85 42 - Fax: 33 (0)5 56 84 85 12 email: comptrasec@u-bordeaux4.fr website: http://comptrasec.u-bordeaux4.fr Contact: LoïcLerouge loic.lerouge@u-bordeaux4.fr Phone: 05 56 84 40 52

UMR 5114 CNRS – University of Bordeaux – France