France's Approach to Workplace 'Bullying'
Americans may not be surprised to learn that the recent wave of employee suicides at iconic companies like France Télécom and Renault has generated widespread soul searching. The French government has generated reports on “workplace stress” and unions and management have agreed to fight the problem. Finally, in October 2009, the French Cabinet decreed that large companies must make stress a mandatory topic in the ongoing negotiations between workers and managers that define the French workplace.
But more exotic—and probably more significant for U.S. managers in the long run—is the growing recognition of workplace bullying as a problem worthy of redress by the courts. (The behavior is called “mobbing” in some parts of Europe.) France is in the vanguard today in taking a stance against bullying, but the European Union supports the movement and other national regimes are close behind. It might be argued that the concept can never take root in the tough soil of America’s employment-at-will workplace, but as more companies go global, human resources and other executives should at least become aware of the phenomenon in Europe. If you have employees in France, it will become hard to avoid. And unlike the sudden concern over stress, workplace bullying did not arise with the recession and will not subside with economic recovery.
The idea of workplace bullying began being discussed in Europe in the 1980s and was given academic heft when Heinz Leymann, a German psycho-sociologist of working conditions teaching in Sweden, published research in 1994 describing psychologically violent behaviors in the workplace, which he termed “mobbing.” The Council of Europe then took up the issue and defined workplace bullying as actions that are “unacceptable or explicitly hostile and offensive directed on a repeated basis against any employee at the workplace,” deemed an injury to an employee’s dignity under the European Employment Charter of May 3, 1996. Subsequently, several EU directives have outlawed “moral” or workplace bullying as a form of discrimination, especially in relations between men and women.
Legal recognition of workplace bullying began later in France than in the English-speaking and Nordic countries in Europe. The French term for bullying is harcèlement moral, and it became the subject of a debate in the media in the late 1990s and first entered the law books in 2002, but with an important Gallic twist: While European courts then defined workplace bullying in terms of discrimination, France perceived it as an injury to an employee’s mental health.
Subsequent legal actions and court decisions have fleshed out the concept. Under the current French Labor Code, workplace bullying consists of repeated actions—including indirect negative communications, denigration and slights, isolation, threats, abusive use of authority and contradictions—that “have as their purpose or effect” a deterioration or degradation of an employee’s working conditions that “could” violate their rights and dignity, alter their physical or mental health or compromise their professional future. As a practical matter, workplace bullying is defined by its consequences.
Three facts are required to prove workplace bullying in a French court: repeated acts, deterioration or degradation of working conditions and consequences for an employee’s rights, dignity, health or career. The Cour de cassation, France’s highest court, has decreed that employers are responsible for justifying alleged acts of bullying as legitimate.
Workplace bullying typically must be shown to take place in a series of actions over time, but there is one exception: a single act against a person for reasons of discrimination related to sex, religion, sexual orientation or age. France added this alternative in deference to EU directives against discrimination. The law dated May 27, 2008, expands the definition of discrimination to include any action involving a “discriminating motivation” that “has as its purpose or effect to injure or adversely affect the dignity or any person and create an intimidating, hostile, degrading, humiliating, or offensive environment.”
Aside from bullying motivated by discrimination, the case law is very clear that a repetitive pattern of actions must be shown. For instance, the French high court held in December 2009 that a demotion, even illegitimate, was an isolated action and therefore could not be characterized as workplace bullying. The analysis of the repetitive character is left to the discretion of the courts.
As an instructive example of French courts’ current thinking, consider the real case of a maintenance technician responsible for a mechanical workshop who charged his employer with workplace bullying. He had worked for 12 years without criticism until, in a space of six months, he received two letters informing him that his responsibilities were not being met in a normal manner. He then received a third letter confirming the second. The employer commenced a disciplinary procedure against him but never concluded it. Finally, the employee noticed a company ad that, according to the employee, was clearly seeking to recruit his replacement.
But the conduct that came in for review did not consist just of these actions but also of behavior by omission: refusing to speak to the employee in question, ignoring him and refusing to assign him work.
The Court of Appeal held that management had indeed engaged in a pattern of repetitive psychological violence constituting workplace bullying, and France’s highest court affirmed that ruling.
Such a broad definition presents obvious challenges to employers. If an employee does not perform as well as others, and the employer avoids giving him the difficult tasks, is that workplace bullying? Managers may avoid speaking to the employee, for fear that it will interpreted as unacceptable psychological violence.
In fact, the law does not require a showing that the person doing the harassing intended to downgrade the victim’s working conditions, according to high court, writing on November 10, 2009. All that is necessary is that the conduct have the effect of producing such deterioration or downgrading. Accordingly, merely inadvertent or clumsy actions may be characterized as workplace bullying.
Nor does the law even require proof of actual injury. It is enough that the series of actions be “likely” to injure an employee’s rights or dignity. And these “rights,” it should be pointed out, often relate to treatment of an employee who is already on the way out. For instance, employees have a right to a proper dismissal procedure and appropriate severance pay, rather than being forced to resign by constant pressure. Where “dignity” is concerned, the notion is vaguer, with each person arguing it on the basis of his or her own personal situation.
French law treats workplace bullying like other aspects of employee physical and mental health. Employers are responsible for it—not just for good-faith efforts or making resources available but in terms of results. The mental health of employees must not deteriorate at work, so employers are responsible for acts of workplace bullying, even though they may have taken steps to prevent or end them. Employees who are victims have a right to recover damages for their injury.
Although class actions are not an option for plaintiffs, France’s highest court recently ruled that a “perverse” management style can constitute workplace bullying, putting an end to disagreements among the lower courts. If several employees claim to be affected by such management methods, each one would have to go to court individually.
While Belgium, Sweden and England have also passed anti-bullying legislation, the concept is most widespread and legally developed in France. For better or worse, the world’s employers would do well to stay tuned.
Workforce Management Online, March 2010 -- Register Now!