BASQUE OBSERVATORY ON BULLYING MANUEL VELÁZQUEZ JUAN IGNACIO MARCOS SEEKING A TRANSNATIONAL LEGAL CONCEPT ON WORK-RELATED BULLYING 1 Basque Observatory on Bullying

A CONCEPT OF BULLYING Different terms  Bullying  Harassment  Mobbing Different languages  Harcélement moral  Acoso moral  Molestia morale  Assedio moral Different meanings? 2 Basque Observatory on Bullying

International instruments on bullying 3 Harassment is present in European Directives for equal treatment  Directive 2000/78/EC  Directive 2002/73/EC It is present in two European Framework Agreements  Agreement on Work-related Stress  Agreement on Violence and Harassment It is also present in an International Code of Practice  ILO – Violence in Service Sector Basque Observatory on Bullying

Why is convenient a transnational concept? 4 Influence of International instruments in National Labour Legislations  Italy: Legislative Decree 81/2008: A reference to the European Work-related Stress Agreement for carrying out risks assessment process Influence of International instruments in National Courts decisions  Because they are guiding judicial practice in many countries Basque Observatory on Bullying

Different words have different legal meanings? 5 If they have different meanings  Bullying can be an individual behaviour  Mobbing can be a group behaviour  Harassment is related to equal treatment  Each word would have different legal consequences If they have the same meaning  Legal confusion would be avoided  Words would have the same meaning with different legal consequences depending on intensity, facts and circumstances in each situation Basque Observatory on Bullying

Is bullying work-related stress? 6 European framework Agreement on Work-related Stress:  It recognises that harassment and violence at the work place are potential work related stressors  This agreement says that “identifying whether there is a problem of work-related stress can involve an analysis of factors such … working conditions and environment (exposure to abusive behaviour, …)”  Conclusion: harassment can be a stressor or a factor to cause stress Basque Observatory on Bullying

Is bullying a kind of violence? 7 Violence entails an illegitimate or abusive behaviour  It is not a simple interpersonal dispute or conflict Bullying is within the psychological violence Internal physical violence is related to bullying  Frequently physical internal violence is the natural consequence of previous psychological violence External physical violence or third party violence is not usually related to bullying  The purpose of the assailant is quite different Basque Observatory on Bullying

Bullying is a violation of dignity at work? 8 Dignity is a basic human right which is foreseen in all International Declarations and National Constitutions Art. 26 of the European Social Charter establishes the right to dignity at work  to promote awareness, information and prevention of recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct Dignity can involve bullying behaviours but also other behaviours which are not bullying Basque Observatory on Bullying

Bullying is a violation of integrity? 9 The right to integrity can be related to occupational health and safety: the obligation to prevent bullying Bullying is capable or susceptible of causing damages to the health of the persecuted person It should be treated in any case as a work-related hazard in which the occupational health and safety rules are enforceable Integrity can involve bullying behaviours but also other behaviours which are not bullying Basque Observatory on Bullying

Dignity and Integrity Basque Observatory on Bullying 10 Dignity is within the scope of Labour Law and Integrity within the scope of Occupational Health and Safety Law Both rights, dignity and integrity could be violated by bullying behaviours Would it be better to directly enforce these rights than to have a special legislation on bullying?  A special legislation could limit and restrict the scope of bullying  In order to protect workers rights it would be better to avoid undue restrictions

Should bullying be a bilateral behaviour? 11 Can bullying be a general despotic behaviour without a given victim or victims? Or does bullying always need a victim?  Legal enforcement need a person whose rights have been violated Basque Observatory on Bullying

Should bullying be an intentional behaviour? 12 Harassment should be a deliberate or intentional conduct on an individual?  Should only the assailant’s behaviour be analysed? Is it enough to judge the effect on the alleged victim?  Should it be taken into account the beliefs of the victim or only social beliefs generally accepted?  In particular or special cases: should the offender know the vulnerability of the victim to be responsible? Basque Observatory on Bullying

Should bullying be a repetitive offensive behaviour? 13 Can it be considered as bullying an occasional relevant offensive behaviour or should bullying be always considered a process over a period of time?  Relevant offenses currently receive legal protection  Micro-offenses need a global analysis (a bullying doctrine) to be considered legally protected Basque Observatory on Bullying

CONCLUSIONS Bullying, harassment, mobbing, harcélement moral, acoso moral, assedio moral, molestia morale should have the same legal meaning with different consequences depending on facts and circumstances Bullying is a stressor or factor to cause stress It is a form of psychological violence It is a violent behaviour of one assailant to one victim It is a behaviour with the purpose or the effect to violate the rights to dignity and integrity of the victim Bullying behaviour should be developed during a period of time

15 Basque Observatory on Bullying