Not every situation in which an employee feels uncomfortable constitutes workplace bullying or harassment. For bullying to be present, certain behaviors must persist over an extended period.
What is Bullying?
Bullying is repeated, systematic, and targeted behavior in which a person or group deliberately harasses, annoys, humiliates, or excludes others. It is a form of social abuse in which the victim experiences physical, psychological or emotional pressure over an extended period (BGer 4A_652/2018).
Bullying can occur in the workplace and originate from employees or supervisors. It can take various forms, including verbal attacks, threats, exclusion, spreading rumors, ridicule, humiliation, physical violence or property damage.
The effects of bullying can be significant for the affected individual, impacting their self-esteem, mental health, social life, and performance. Common consequences include anxiety, depression, sleep disturbances, withdrawal from social activities, decreased productivity and even suicidal thoughts.
The Swiss Federal Court does not consider behaviors lasting less than six months as bullying (BGer 4A_310/2019).
What Can You Do?
Employers
Employers are obligated to protect the dignity of their employees (Art. 328 CO, Art. 6 para. 1 ArG). Consequently, employers are also responsible for protecting employees from bullying. When bullying occurs, employers are required to take measures. The appropriate actions depend on the circumstances of each case.
In some cases, employers may attempt to resolve the situation through termination. Termination in a bullying situation can be abusive. If an employee is terminated, employers should expect that the terminated employee will claim the abusive nature of the termination and initiate corresponding legal proceedings. For employers, termination is often a delicate balancing act.
Employees
Bullying incidents are rarely documented in writing, making it challenging for employees to prove their claims. This makes it difficult for employees to make and assert their claims. It is crucial for affected employees to document instances of bullying and report them to their employers. Bullying can potentially be proven through various indicators (see BGer 8C_446/2010, section 4.1).
For affected employees, the following options may be considered:
- Employees may request their employers to cease further bullying actions or take preventive measures. If the conditions are met and the employer fails to act, the employee may cease work without forfeiting their right to wages.
- In cases of severe personal injury to the employee, the employee may consider terminating the employment contract immediately (e.g., in cases of physical assault, bodily harm, sexual harassment).
- Reporting the issue to the relevant cantonal authority (employment office, labor inspectorate, etc.) may also be an option.
- If an employee is terminated, they can claim that the termination is abusive and seek compensation.
The appropriate steps and procedures depend on the specific circumstances of each case.
