Swiss law considers mobbing as a violation of personal privacy and physical integrity. The term is used to describe psychological harassment at the workplace aiming to destroy the self-esteem of the employee. The Federal Court defines mobbing as “the sequence of repeated psychological harassment aiming to exclude the employee from the workplace”. Mobbing is particularly challenging to prove in Court.
WHAT IS MOBBING ?
Mobbing, discrimination and sexual assaults are commonly encountered at the workplace, resulting in sensitive conflicts to be handled with attention. A person being mobbed often shows symptoms such as loss of motivation, increasingly inward-looking attitude, defensive behaviour, lack of participation in social work events, frequency of sick leave before eventually resigning. On the legal level, these three behaviours are treated almost the same way. Mobbing can come from hierarchical superiors or colleagues. The aim is usually to push the employee out of the workplace.
According to art. 328 al. 1 CO (Code des Obligations regulates employment law in Switzerland), the employer is bound to protect and respect the employee’s personality and to ensure his moral welfare. The employer has the responsibility to protect the employee’s health and wellbeing at the workplace (art. 328 al. 2 CO). Conflicts at work happen regularly, however it is how they are handled that is important. If conflicts go over six months with the employee seeing his moral welfare being negatively impacted by verbal abuse, physical and mental aggression, sexual harassment or being shamed or humiliated without the situation being addressed properly, a case of mobbing can be raised.
The psychological and physical impact of mobbing has long-term consequences often leading to depression. Victims of mobbing usually show later syndromes of post-traumatic stress where they continuously live the events and often experience insomnia, lack of appetite, difficulty in focusing and mood swings. Mobbing has therefore serious negative impact on health and can destroy a person’s self-confidence and ability to reintegrate the workforce. Cases of mobbing in large international organizations happen too often without being reported for fear of losing jobs and consequently work permits and rights to stay in Switzerland. However, mobbing under Swiss law is considered a serious abuse and must be reported.
HOW TO PROCEED ?
If you are subject to mobbing by a superior or colleague, it is recommended to act rapidly by reporting the situation to your manager, or your manager’s superior or the HR manager. Large organizations often have a designated person with whom you should be able to speak confidentially. A mediation can be organized between the employee and the person accused of mobbing to attempt to solve the conflict internally and hear each party. However, if the situation is not addressed properly and stays static, then a formal complaint should be lodged against the person responsible for mobbing or against the organization. If a criminal offence has been committed (art. 181 CP), such as rape or physical harm, the complaint should be formally addressed to the General Prosecutor at the Public Ministry. The legal actions to take if you are being mobbed depend on whether your work contract has been terminated or not.
PERIOD OF PROTECTION DURING SICK LEAVE
In the case of continuous acts of mobbing, the employee often resorts to taking sick leave, after having provided a medical certificate. According to art. 336c CO, the employer is not allowed to terminate the contract during a certain period under sick leave. However, there is only a limited legal period of exclusive protection against work termination (art. 324a CO). During the first year of employment, the employee taking sick leave is protected from receiving a termination notice for 30 days maximum. From the second to the fifth year of employment service, the period of protection is of 90 days and from the sixth year of service, the period of protection goes up to 180 days.
After the period of protection, it is the employer’s loss of earnings insurance that covers the employee’s salary, up to 720 days if the sick leave is extended until then (ATF 127 III 318). If the employee receives a termination notice during the period of protection, the law considers the notice as void. The employer will have to wait until the employee is back or once the period of protection has ended to be able to issue a termination notice.
If a termination notice is received after the period of protection while still being on sick leave, then the employee should be entitled to receive his salary for a period going up to 720 days under sick leave. However, if the employee voluntarily resigns under the pressure of repeated conflicts, the period of protection does not apply and it could be difficult to ask for indemnities without evidence. Proof of abusive behaviour will constitute key elements for the case such as personal notes resuming the events, emails and any correspondence being exchanged, witness testimony and medical certificates.
ABUSIVE TERMINATION OF WORK CONTRACT
The law recognizes that being discriminated against for any reason is prohibited. According to article 328 CO, it is the employer’s responsibility to ensure employees welfare. Therefore, it is important if you receive a termination notice while you believe that you have been discriminated against or morally abused that you seek legal advice to respond appropriately.
If you receive a termination notice and believe it is abusive, you must contest it before the end your notice period by sending a letter to your employer. According to case law, contesting your termination by explaining the situation is not obligatory. According to article 336b CO, a compensation for moral wrongs under the form of indemnities amounting up to six months of salary can be requested from your employer. The indemnities must be formally requested within 180 days counting from the end of the contract.
An abusive termination notice is defined by the work contract being ended based on the employer’s dislike of the employee’s personal characteristics or due to claims formed by the employee regarding his work contract or compensations. Mobbing in itself does not qualify for abusive work termination (ATF 130 III 699), however if the employee is no longer able to perform his duties as well as before due to the employer’s behaviour and sees consequently his contract being terminated, then the termination is abusive (ATF 125 III 70).
Mobbing, unfortunately, is frequent at the workplace and has devastating effects on a person’ health. It should not be tolerated at any cost. Rapid actions should be taken by the employee despite the fear of losing jobs and associated work permits for expats. Thus, measures can be taken to maintain your right to stay in Switzerland while you are in the middle of a legal procedure. Holding a B permit or a carte de légitimation (CDL), does not give you less rights than any other citizens under Swiss law.
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