How to prove workplace bullying?

The Mobbing in the workplace is a form of Harassment difficult to prove in essence, as it is so multifaceted. Depending on the jurisdiction seized, rules of evidence and procedure vary. Whether to accompany a Employee victim of psychological harassment or to ensure your own defense, we give you all our advice for Prove workplace bullying. First, however, it is important to understand what is meant by Workplace bullying.

The concept of psychological harassment in criminal law and labor law

Leaving from a legal definition is of paramount importance in law. It is this definition that will determine the evidence to report For the Legal qualification of psychological harassment be retained by the courts.

The Workplace bullying is particular because it falls under the dual jurisdiction of labour court advisers And of Judicial judge in criminal matters. Although these different procedures do not necessarily aim to punish the same persons in the same way, they are interested in the same facts by using two different pieces of legislation with different procedural rules.

• The Criminal judge will retain the definition of psychological harassment resulting from Penal code by applying the rules of criminal procedure.
• Les labour court counsellors will retain the law resulting from Labor code by applying the special civil procedure law in labor law matters.

So it follows a different evidentiary regime.

Proving psychological harassment in employment law

Definition of mobbing

The article L1152-1 of the Labor Code Define the Mobbing Like Repeated actions having the effect or purpose of deterioration of working conditions likely to affect its rights and dignity, to alter its physical or moral health or to compromise his professional future.

Reading this definition, Proving psychological harassment in employment law is equivalent to reporting two elements:

• Of Repeated actions psychological harassment;
• one potential violation of rights and dignity, at the health or at theprofessional future.

However, the Labor code does not provide the definition of the facts likely to constitute a Cases of psychological harassment in companies. This omission seems to be quite coherent insofar as the facts can take on an infinite number of forms. It seems more appropriate to focus on the object and consequences of these facts to consider whether they are constitutive of Mobbing or not.

Examples of situations constituting psychological harassment

The judges were able to characterize situations constitutive of Mobbing :

• Isolation or isolation of the employee;
• Repeated denigration the quality of work;
• Overwork ;
• Change of position without the agreement of the employee;
• Inequality of treatment in terms of bonus payments.

Why prove moral harassment before the labor courts?

The Conseil des Prud'hommes has exclusive jurisdiction to settle disputes arising during the execution of employment contract. It therefore naturally opposes employees to employers (or vice versa) in all disputes brought to its attention.

In terms of Mobbing, the labour court counsellors are only interested inFuture of the working relationship (for example, by pronouncing the termination of the employment contract) and, in case of recognition of the facts of Mobbing, to pecuniary compensation of the victim employee. Under no circumstances can the employer be condemned to a fine or prison sentence in the context of a labour court procedure (only the Judicial judge is competent to do this).

Employer responsibility

Is it useful to enter the Prud'hommes if the employer is not personally the perpetrator of Mobbing in the company? The employer is in debt to a safety obligation with respect to its employees (item L4121-1 and following of Labor code). However, prove the stalking is equivalent to demonstrating actions that harm mental and physical health of the employee, therefore to his safety.

In fact, the employer may be required Responsible before the Labor Court Facts of Mobbing occurred in his company. To incur liability, it is therefore necessary to prove the Mobbing then to demonstrate that the employer did not take the necessary measures to avoid its occurrence.

How to prove moral harassment before the labor courts?

Before the labor court, the rules of evidence are free. It is therefore possible to demonstrate the existence of Mobbing by various methods:

• Testimonies and certificates psychological harassment;
• Email, SMS And any other written document addressed to the victim.

In terms of Mobbing, the employee just has to report facts suggestive The existence of Mobbing (L.1154-1 of Labor code). Without constituting a reversal of the burden of proof, the victim employee can establish a Situation of presumptive harassment even with limited evidence. It is then up to the employer to justify that the facts do not constitute psychological harassment.

If you lack elements, it is also possible to formulate a Summons to provide evidence. The judge can then require the employer to Communicate certain rooms in his possession.

Limits of evidence

Not all the evidence is admissible before the Labor Court. They must respect the Principle of loyalty, under penalty of being inadmissible. This implies that evidence cannot be collected without the knowledge of the author, such as a non-consensual registration.

This rule can be disabling for preconstitute evidence, because most of the acts of harassment are oral and difficult to detect. Fortunately, in criminal matters, the Loyalty of the evidence is not applicable to private parties.

The advantage of the double procedure

The criminal law sanctions the perpetrator of the acts of Mobbing of 2 years in prison and a fine of €30,000 (article 222-33-2).

• Criminal action is aimed only The perpetrator.
• It allows collect evidence, including illegal recordings provided by the Victim civil party.

If the Criminal judge Recognize the Mobbing, the Conseil des Prud'hommes is legally bound by this decision. It is then no longer necessary to prove the Harassment before the Prud'hommes, and the instance focuses on the failure of the employer to comply with its safety obligation and on the continuation or not of the employment contract.

What if you can't prove mobbing?

If you have not succeeded in bringing together the evidence needed, it is possible to turn to others legal qualifications :

• Inequality of treatment ;
• Discrimination (L1132-1 of Labor code).

These qualifications do not require proof of repetition and can constitute adapted fallback solutions depending on the situations encountered.

‍