basque observatory on bullying manuel velÁzquez juan ignacio marcos seeking a transnational legal...

BASQUE OBSERVATORY ON BULLYING

MANUEL VELÁZQUEZJUAN IGNACIO MARCOS

SEEKING A TRANSNATIONAL LEGAL CONCEPT ON WORK-RELATED

BULLYING

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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?

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International instruments on bullying3

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 - 2004 Agreement on Violence and Harassment - 2007

It is also present in an International Code of Practice ILO – Violence in Service Sector - 2003


Why is convenient a transnational concept?

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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


Different words have different legal meanings?

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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


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


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 violenceInternal physical violence is related to

bullying Frequently physical internal violence is the natural

consequence of previous psychological violenceExternal physical violence or third party

violence is not usually related to bullying The purpose of the assailant is quite different


Bullying is a violation of dignity at work?

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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


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


Dignity and Integrity


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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?

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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


Should bullying be an intentional behaviour?

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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?


Should bullying be a repetitive offensive behaviour?

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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


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 stressIt is a form of psychological violenceIt is a violent behaviour of one assailant to

one victimIt 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

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Thank you for your attention


basque observatory on bullying manuel velÁzquez juan ignacio marcos seeking a transnational legal...

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