Harassment at Work
Edited by Stefano Trifirò and Federico Manfredi
The issue of harassment in the workplace is a particularly relevant in this period. Clearly, an event of this gravity affects many areas of law, with consequences in criminal, civil and labour law. As our firm is specialized in labour law in particular, we have examined the protective measures that defend a worker, man or woman, who is harassed at work.
First of all, it seems appropriate to start from art 2087 of the civil code, which outlines the employer’s responsibility for the psychophysical integrity of the worker. This provision, in terms of bullying and / or sexual harassment, specifically identifies an employer’s responsibility not only when the latter plays an active role in the harassment suffered by the employee, but also when the employer has not taken appropriate precautions and / or measures to protect the psychophysical and moral integrity of workers. That said, it should be pointed out that the same principle also applies to the disciplinary measures that the employer is entitled to implement against the employee who has been responsible for harassment and / or bullying against another worker. Indeed, it has been recognized in case-law that there is proper cause for dismissal of the employee who has harassed a colleague at work, even in the absence of explicit provisions within the collective agreement and the disciplinary code, just as sexual harassment at work places a critical obligation on the employer to intervene and protect its employees.
However, unfortunately sometimes the employee being fired is in fact the victim of harassment at work. In these cases, the legislator, even after the recent reform of the Jobs Act, stipulates the remedy outlined by our law on justice: reintegration. In fact, the Jobs Act has introduced a system of protection in the event of unlawful dismissal with increasing protection. However, it is true that the legislator’s favour of indemnification protects against the discriminatory nature of dismissal. Indeed, for expulsion measures of the employer that are deemed discriminatory, that is to say religious, political, racial, sexual, physical and retaliatory reasons, there is an “old” remedy of strong reintegration protection. This protection, as the name suggests, consists of reinstatement of the workplace as well as compensation equivalent to full monthly remuneration due since dismissal and in any case not less than five monthly payments.
Alternatively, the worker has the opportunity to ask for compensation equal to 15 months of the last salary, instead of reintegration. This discretion given to the worker is particularly effective in light of the harassment discussed here. In fact, it seems more than legitimate that the victim of harassment may wish, once the nullity of the dismissal is established, to “turn the page” preferring compensation rather than reintegration into the workplace.