Mobbing is often called psychological harassment. It comes from the English verb "to mob" which means to assault, to abuse, to attack. In the workplace, it manifests itself through the destabilization and marginalization of an employee through hostile acts by his colleagues, his superior or his boss.
Frequency and duration
In order to be considered as mobbing, it must have lasted for a certain period of time and the hostile actions must have been repeated with a certain frequency. There is no mobbing when it is a temporary conflict situation.
It is sometimes difficult to distinguish mobbing from a simple tense or conflictual situation at work. How should one manage the situation of a superior who regularly gives his or her employee reprimands that are sometimes hurtful in form but justified in substance?
During serious work conflicts, the employee is sometimes unable to work. The medical certificate sometimes states that the employee can no longer come to work because of mobbing at the workplace. Is this medical certificate sufficient to prove that psychological harassment actually occurred?
The employer must protect the psychological health of his employees. He must prevent and put an end to situations of psychological harassment within the company. He or she is required to put in place a directive aimed at fighting against psychological harassment.
A procedure must be put in place when a mobbing situation arises. The employer must designate a trustworthy person competent to receive complaints from employees. This person must meet certain requirements in terms of independence, neutrality and confidentiality.
The employer is obliged to prevent and put an end to mobbing situations in the workplace. However, due to the advancement of technology, these situations sometimes move online, on social networks. What is the employer's responsibility in such situations?
The employer is liable when he or she does not take all reasonable measures to put an end to mobbing situations. The bill can be high, especially if the employee is unable to work because of the mobbing or if the employer terminates the employee’s contract. In addition to possible compensation for wrongful dismissal, the employee can claim compensation for moral damages in particularly serious cases.
What if there is a conflict in the workplace but the tense situation does not formally constitute mobbing?
In addition to constituting mobbing, certain behaviors can be criminal offences, particularly in the case of defamation. The employee may, under certain conditions, file a complaint against the perpetrator of the harassment.
Faced with a situation of mobbing, the employer is sometimes tempted to dismiss the person being harassed. There are many reasons for this: the desire to avoid having to take other, sometimes tedious, measures, dismissal following a long period of inability to work...
Such a dismissal is extremely risky. In most cases, it will be qualified as wrongful.
The psychological state of a victim of mobbing can deteriorate and lead to a burnout. The employee is no longer able to meet his or her obligations and perform his or her duties properly. The inability to work is never far away.
Can the employer dismiss him or her in such a case? The dismissal will be wrongful when the employer must be held responsible for the employee's incapacity to work.
In order to encourage the employee to assert his or her rights, the legislator has provided protection against so-called reprisal leaves. An employer who dismisses an employee who asks him to take action against the perpetrators of mobbing risks a lot. What happens when it turns out that it is not a question of psychological harassment?
Termination at an inopportune juncture
Is an employee whose inability to work only exists for the job he currently has, protected against dismissal at an inopportune juncture? No, the Federal Court has decided!
However, this situation must be handled with extreme caution. If the employer has not taken the necessary measures to prevent or stop the mobbing, he will have to pay a compensation that can amount to several months of salary.