Abstract
Over the last thirty years, psychosocial risks have become a major issue: seemingly, the decrease in physical risk due to the decline of the industrial society is now matched by the vast increase in psychological risk linked to the rise of service industries
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- 1.
Sick on the Job? Myths and Realities about Mental Health and Work, OECD, January 2012, http://www.oecd.org/els/mental-health-and-work-9789264124523-en.htm.
- 2.
The report also notes that between a third and a half of all those receiving sickness benefits are suffering from psychological problems, and this proportion reaches 70% among young adults, op. cit., p. 1.
- 3.
- 4.
See How to tackle psychosocial issues and reduce work-related stress, EU-OSHA, 2002, http://osha.europa.eu/en/publications/reports/309.
- 5.
By the Law of 11 June 2002 on protection against violence and psychological or sexual harassment at work, M.B. 22.6.2002.
- 6.
Prior to the Law of 11 June 2002, there was a Royal Decree of 1992 on sexual harassment in the private sector, extended to the public sector by a Royal Decree of 1995. Later, Article 442bis of the Penal Code, introduced by the Law of 30 October 1998, prohibited harassment (M.B., 17 December 1998). It imposed a prison term of 15 days to 2 years and/or a fine of 50 to 300 francs on “any person who may have harassed another person in the knowledge that this behaviour would seriously disturb the peace of the other person”. Between 1998 and 2002, Belgian legislation introduced no further regulation against harassment (psychological or sexual).
- 7.
By the Law of 10 January 2007, modifying several provisions relating to the well-being of workers at work, including those concerning protection against violence and psychological or sexual harassment at work, M.B. 6.6.2007.
- 8.
See Ex-Article 4§1, paragraph. 2, 3°.
- 9.
The new law, Royal Decree and the explanatory report are available at: http://www.emploi.belgique.be/defaultNews.aspx?id=41483.
- 10.
Royal Decree of 17 May 2007 on psychosocial burden generated by work, including violence and psychological or sexual harassment (public/private).
- 11.
See J-P. Cordier’s book Le bien-être psychosocial au travail: harcèlement moral, harcèlement sexuel, violence, stress … Études pratiques de droit social, Waterloo Kluwer, 2009, p. 137, where he notes “harassment presupposes a degree of imbalance of power which leads to inequality. The individual who is harassed has to confront a power structure with little opportunity for defending her/himself. An ordinary dispute or bad relationship between two people does not constitute harassment in the strict sense, as both parties are on the same level”.
- 12.
For the phenomena covered by these terms and some useful examples, see: Guide pour la prévention des risques psychosociaux au travail, See Flohimont, C. Lambert, M. Desseilles et al., under the auspices of the SPF Emploi, Travail et Concertation sociale, October 2013, pp. 14–16 and pp. 41–46, http://www.sesentirbienautravail.be/content/campagne_2013.
- 13.
Y. Clot, Le travail à cœur. Pour en finir avec les risques psychosociaux, La découverte, Paris, 2010, 192 p.
- 14.
The definition of violence in Belgian law is “any situation where a worker suffers violence or aggression, physical or psychological, in the course of their work”. This definition changed in 2007, removing the term “persecution”, on the grounds that it was implicit in the terms “repeated gestures” and “systematic nature”. Violence at work applies to situations that may flare up in an instant, such as a single gesture that has a confirmed destructive effect. The concept of “violence”, which will not be further elaborated in this article, is that of the International Labour Office (ILO), which defines violence at work as “Any action, incident or behaviour that departs from reasonable conduct in which a person is assaulted, threatened, harmed, injured in the course of, or as a direct result of his or her work”. See ILO report http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---safework/documents/normativeinstrument/wcms_107705.pdf. Geneva, 8–15 Oct. 2003, 1.3.1., p. 4.
- 15.
CCT no. 72 of 30 March 1999 concernant la gestion de la prévention du stress occasionnée par le travail, issued by the Conseil National du Travail [National Work Council], http://www.cnt-nar.be/F1I.htm. It was made obligatory by Royal Decree of 21 June 1999, although the CCT covers only the private sector.
- 16.
See particularly Antwerp Labour Tribunal, 16 December 2008, R.G. no. 06/395897/A. Labour Law requires that the employer must fulfil his obligations to reduce stress at work by organising meetings on prevention with employees and modify working patterns, for example, to reduce overtime. CCT no. 72 also notes that work in certain sectors is inherently stressful, e.g. security services, or risky, like the fire service, and employers are urged to reduce stress factors in these jobs to the minimum.
- 17.
However, Belgium’s “Well-being Strategy 2008–2012” contained a commitment to “the prevention of musculoskeletal disorders (MSD) and stress at work”. It undertook to reduce these problems by 5% in each of the five years concerned. See http://www.beswic.be/fr/systems/nationale_strategie_FR.pdf. Valuable Belgian resources on stress at work include Emploi, Travail et Concertation sociale, Le stress au travail—Facteurs de risque, évaluation et prévention, May 2004 (available online); S. Henderickx et H. Krammisch, Docteur, je vais craquer! Le stress au travail, Éd. Aden, Brussels, 2010, 261 p.
- 18.
- 19.
L. Fanello, “Dossier La Prévention des risques psycho-sociaux—Une tendance à ne pas voir”, HR Magazine, no. 92, June 2013, p. 25.
- 20.
The division of roles between the trustworthy person and the prevention counsellor was defined more clearly then than now.
- 21.
To encourage a collective approach and consultation within the company on collective problems, the prevention counsellor needs to assess whether the request for formal psychosocial intervention relates to collective risks. In this case, the employer must agree to introduce appropriate preventive measures, in consultation with the works committee or trade union representatives.
- 22.
See: Second Rapport d’évaluation de la législation relative à la prévention de la charge psychosociale occasionnée par le travail dont la violence et le harassment moral ou sexuel au travail, produced by the SPF Emploi, Travail et Concertation sociale, 28 April 2011, http://www.beswic.be/fr/news_board/evaluation_atwork.
- 23.
The Belgian Court of Cassation emphasises that there must be proof of the incessant and repetitive nature of the incidents in order to reach a conclusion of harassment, Cass., 21 February 2007, R.G. no. P.06.1415.F.
- 24.
The term ‘incidents’ refers to unilateral behaviour, words, intimidation, actions, gestures, and written material.
- 25.
Projet de loi relative à la protection contre la violence, le harassment moral et sexuel au travail, exposé des motifs, Ch. Repr., sess. ord. 2001-02, Doc.Parl., 50-1583/003, p. 7. See P. Humblet and B. Lietaert, “De Pestwet: een proeve van eclectische wetgeving”, Gentse juridische actualia, 2004, p. 213. See also: C. trav. Anvers, [Antwerp Labour Tribunal] 21 December 2005, R.G. no. 2,050,067.
- 26.
The new Law modifies Article 32-3 of the Law on Well-being by replacing “several instances of abusive behaviour” with “abusive pattern of behaviour”. Henceforth, this includes events that, taken in isolation, may seem harmless, but may, overall, cause serious harm to individuals.
- 27.
See e.g.: C. trav. Brussels, [Brussels Labour Tribunal] 16 October 2003 and 5 February 2004. See refs. 260, 265 and 266 of the Rapport d’évaluation—Loi du 11 June 2002 relative à la protection contre la violence et le harassment moral ou sexuel au travail, Brussels, Service Public Fédéral Emploi, Travail et Concertation sociale, [Federal Public Service for Employment, Labour and Social Consultation] July 2004; Antwerp Lab. Trib., 21 December 2005, Chron. D.S., 2008, p. 732; Brussels Labour Tribunal, 7 November 2005, unpublished., R.G. no. 75480/4; Dinant Labour Tribunal, 24 April 2007, unpublished., R.G. no. 67898.
- 28.
See J.-P. Cordier, “La loi du 11 June 2002 relative à la protection contre la violence et le harassment moral ou sexuel au travail”, JTT, 2002, pp. 383–384. Managerial ill-treatment is not psychological harassment. According to Marie-France Hirigoyen dans son ouvrage Malaise dans le travail, harassment moral: démêler le vrai du faux, Syros, 2001, p. 22, managerial ill-treatment is the “tyrannical behavious of certain temperamental managers, who subject their employees to terrible pressure or treat them in a violent manner, abusing them (….) and not showing them respect”.
- 29.
SPF Emploi, Travail et Concertation sociale, [Federal Public Service for Employment, Labour and Social Consultation] Clés pour la prévention de la charge psychosociale au travail: stress, violences, harcèlement moral ou sexuel, Brussels, 2007, p. 12. The SPF Emploi provides a non-exhaustive list of various examples of unacceptable behaviour that may harm those targeted: “Constantly isolating the person by ignoring them, not taking any notice of their presence, keeping them away from their colleagues, fomenting disagreement between them and their colleagues, preventing colleagues from talking to them, changing their timetables, not informing them of meetings…”.
- 30.
The Belgian Council of State, in its Advice of 16 November 2000, stated, “it would be excessive to punish a sexist joke or a caricature based on sexual orientation or a physical characteristic of a known person, as long as the limits of insult, slander, defamation or invasion of privacy are not breached”. See CE (sect. légis.), Advice no. 30.462/2 of 21 December 2000 on the Bill on Combatting Discrimination and Modifying the Law of 15 February 1993, setting up a Centre for Equality of Opportunity and Combatting Racism (Doc. parl., Sénat, n° 2-12/1), Doc. parl., Sénat, no. 2-12/5, 21 December 2000, V 2.
- 31.
See Corr. Marche-en-Famenne, 18 April 2001, Aud.trav. c./L. et S.C. Taverne des Bateliers (R.G. no.69.99.187/00), Chron.dr.soc., 2003, 02, p. 104. For the courts, when a company representative admitted that he suggested having sexual relations with one of the female workers, who stated that this caused her emotional upset, the representative's clumsy and inappropriate action did not constitute the offence of harassment, according to Article 442bis of the Penal Code, in that the “victim” returned to work after the incident. A reading of this ruling suggests that only immediate resignation from her employment would have constituted the necessary proof of the threat that she experienced, while a return to the workplace meant that there was no such threat. This verdict is undoubtedly excessively harsh.
- 32.
Anvers Labour Tribunal, 7 June 2004, Chron. D.S., 2005, p. 446; C. trav. Anvers, 22 June 2004, R.A.B.G., 2005, p. 1320. Similarly, Tongres Labour Tribunal, 2 May 2007, R.G. no. 2357/2005. See also I. Verhelst, “Twee en half jaar pestwet: een analyse van de rechtspraak”, Oriëntatie, 2005, p. 31.
- 33.
Social Affairs Commission report, Doc. parl., Chambre, 2006–2007, no. 51-2686/4, p. 25. It is also probable that the courts assess the seriousness of the incidents constituting the harassment, as well as their duration.
- 34.
Exposé des motifs, [Explanatory statement] Ch. Repr., sess. ord., 2001–2002, Doc. Parl., 50-1583/001 and 50-1584/001, p. 13. There are many forms of harassment at work and the process is not concerned solely with abuse of authority in the context of formal reporting relationships: it may be horizontal or vertical, depending on whether it is committed by colleagues or a superior, upwards or downwards (from a superior to an inferior or vice versa), and individual or collective. It may be perpetrated by persons outside the institution or company, particularly in the banking or healthcare sectors.
- 35.
Brussels Labour Tribunal, 30 June 2006, R.G. no. 48.916/03, unpublished.
- 36.
Brussels Labour Tribunal, 11 March 2008, R.G. n° 62.548/03, unpublished. See also: Brussels Labour Tribunal, 13 June 2006, R.G. n° 53.313/03, unpublished. Also: Brussels Labour Tribunal, 7 November 2005, R.G. no. 75.480/04, unpublished; Nivelles Labour Tribunal, 4 mars 2005, Chr. D.S., 2005, p. 490; Brussels Labour Tribunal, 16 June 2006, R.G. no. 82093/04, unpublished; Antwerp Labour Tribunal, 20 December 2004, R.G. no. 367.413, unpublished.
- 37.
This concept of “undesirability” originates with the fight against sexual harassment at work. See the Code of Practice on sexual harassment “Protecting the dignity of women and men at work”, C 27/6, JOCE, 4 February 1992: “Sexual attention only becomes sexual harassment if it is persisted in once it has been made clear that it is regarded by the recipient as offensive […]. It is the unwanted nature of the behaviour which distinguishes sexual harassment from friendly behaviour, which is welcome and mutual”.
- 38.
However, according to Catherine Barnard in “The Changing Scope of the Fundamental Principle of Equality”, McGill Law Journal., 2001, Vol. no. 46, p. 973, in determining the presence of harassment as defined in Directives 2000/43/EC and 2000/78/EC, “the test is subjective”.
- 39.
The recommendation states that “conduct of a sexual nature or other conduct based on sex (…) is unacceptable if a) such conduct is unwanted, unreasonable, and offensive to the recipient”, C 27/4, JOCE, 4 February 1992. The Code of Practice op. cit. specifies that “the essential characteristic of sexual harassment is that it is unwanted by the recipient, it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive”, Protecting the dignity of women and men at work, C 27/6, JOCE, 4 February 1992.
- 40.
See: Observation “Better not to laugh about it” Arbh. Gent (8ste k.), 1st July 1988, Chron. D.S., 1989, pp. 20–21: this decision took into consideration the perception of the victim, an eighteen-year old female worker, that she was being harassed when the person involved showed her pornographic photos and intimated that she should follow him outside the workplace.
- 41.
See for example Arbh. Brussel (5de k.), 1st June 1992, Chron. D.S., 1993, pp. 274–275; Labour Court (Brussels), 4 September 1996, JT, 1997, p. 638; Corr. Marche-en-Famenne, 18 April 2001, Aud. trav. c./L. et S.C. Taverne des Bateliers (R.G. no. 69.99.187/00), Chron. D.S., 2003, 02, p. 104. For an overview of case law on sexual harassment, see especially J.Ph. Cordier, “La loi du 11 June 2002 relative à la protection contre la violence et le harassment moral ou sexuel au travail”, JTT, 2002, p. 392.
- 42.
In a court case where one of their employees claimed he had been subjected to harassment, the European Investment Bank sought to discover “if the [plaintiff’s] allegations concerning the alleged offences and the chain of responsibility linking the perpetrators, the auditors and the governing body of the EIB, all conspiring against Mr. De Nicola to block his promotion, were the result of his persecution mania, allied to his overestimation of his own abilities (…), or an attempt to exert illegal pressure on the Bank to force it, under threat of scandal, to accept his claims”. See: General Court of the European Union, 23 February 2001, De Nicola vs. European Investment Bank, T-7/98, T-208/98 and T-109/99, § 267.
- 43.
A saying attributed to Wittgenstein states that any meaning given to a situation is always subjective. Thus, when a vote is called in a meeting by raising hands and a person raised his hand during the vote, can his vote be discounted if he claims that he was not voting, but merely afflicted with a nervous reflex at that moment? Wittgenstein would reply in the negative, arguing that no one person alone can give meaning to his action: events only acquire meaning intersubjectively.
- 44.
The US Supreme Court has noted on several occasions that harassment” […] requires an objectively hostile or abusive environment—one that a reasonable person would find hostile or abusive—as well as the victim’s subjective perception that the environment is abusive”. See Meritor Saving Bank v. Vinson, 477 U.S. 57 (1986). Also, Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Harris v. Forklift Sys. Inc., 510 U.S. 17, 22 (1993).
- 45.
Ruling of the General Court (Third Chamber) of 23 February 2001.
Carlo De Nicola v European Investment Bank, T-7/98, T-208/98 and T-109/99, point 270. Point 286 states that: “Independently of the subjective perception the plaintiff may have had of the facts he alleges, the evidence he presented, taken in their totality, did not establish that the defendant’s behaviour objectively caused his dismissal by discrediting him and deliberately worsening his working conditions.
- 46.
Court of Cassation, 21 February 2007, R.G. no. P.06.1415.F.
- 47.
C.A., 10 May 2006, no. 71/2006, B.6.3 and B.6.4., pp. 18–19. See also C.A., 14 June 2006, no. 98/2006, http://www.arbitrage.be.
- 48.
Op cit.
- 49.
The preparatory work specifies that “both intentional behaviour [with the aim] and unintentional [with the effect] are covered by the concept of psychological harassment. However, “some courts wrongly exclude unintentional by requiring ill-intention”. See Bill modifying the Law of 1996 on the well-being of workers, Doc. parl., Chambre, 2005- 2006, no. 51-2686/1, p. 16.
- 50.
This happens both in the private sector, where fear of unemployment may lead colleagues to remain silent, and in the public sector, to ostracise someone who cannot, theoretically, be dismissed. See E. Monteiro, “Le concept de harassment moral dans le code pénal et le code du travail”, RSC, April/June 2003, pp. 277–288.
- 51.
See “a subtle, often unintentional, form of bias that is characteristic of many [people] with strong egalitarian values and believe that they are not prejudiced”, Dovidio, J. F., & Gaertner, S. L. (1998). On the nature of contemporary prejudice: The causes, consequences, and challenges of aversive racism, p. 5. In J. Eberhardt & S. T. Fiske (Eds.), Confronting racism: The problem and the response Newbury Park, CA: Sage.
- 52.
Philippe Coppens states, “self-comprehension of action will not overcome a contrary intercomprehension” Ph. Coppens, Normes et fonction de juger, Paris, LGDJ and Bruylant, 1998, p. 50.
- 53.
See: C 27/4 et seq., JOCE, 4 February 1992.
- 54.
See also General Court of the European Union (3rd chamber), 18 October 2001, X. c/ European Central Bank (T-333/99), Chron. D.S., p. 235 et seq. In this case, the complainant cited the disproportionate nature of the disciplinary procedure, in that, according to him, the conflict between him and the “so-called” victim of harassment “should have been resolved in a more appropriate and preventive manner by the management of the European Central Bank, which should have issued clear working instructions, accompanied if necessary by a warning”. However, the General Court of the European Union ruled that any possible failing on the part of his superiors “could not justify the actions of the plaintiff, who remained responsible for his own actions”. No breach was proven in this case, as the complainant’s superior had called a meeting between the victim and the alleged aggressor and had issued rules of behaviour.
- 55.
See Employment Criminal Code Art. 119 et seq. This came into force on 1 July 2011 (Law of 1st July 2010 introducing the Employment Criminal Code). This was a major reorganisation of employment and criminal law in combining different regulatory systems into a single code. In particular, this Code introduced changes to the powers of labour inspectors and to sanctions.
- 56.
Conseil National du Travail (CNT), avis no. 1683, 6 May 2009.
- 57.
Even before the 2007 change to the law, Labour Tribunals occasionally stated that recourse to internal procedures, in the form of a complaint to the prevention counsellor, should be confidential. The Brussels Labour Tribunal took the view that, in the absence of this precaution, the person alleging harassment would not benefit from the burden of proof now being in their favour. See Brussels Labour Tribunal, 31 November 2004, R.G. no. 65675/2003.
- 58.
See, in support of this hypothesis: J.Ph. Cordier, “La loi du 11 June 2002 relative à la protection contre la violence et le harassment moral ou sexuel au travail”, JTT, 2002, p. 385.
- 59.
The risk of reprisal for the latter is not a theoretical one. See e.g. Cons.d’État (sect.d’adm., 8th ch.), 24 September 1997, H.A. c/État belge (min. Défense nationale), Chron. D.S., 1998, pp. 63–64. The complainant, a serving junior officer who lodged a complaint about sexual harassment by her immediate superior, was subsequently transferred on the grounds of poor performance and interpersonal problems with other staff.
- 60.
Christophe Dejours, in a book entitled “Souffrance en France” [“Suffering in France”], Seuil, 1998, p. 165, makes the point that for a worker to react to harassment suffered by another “is to risk exclusion from the community of the strong and virile [sic] and sharing the fate reserved for victims”. For a discussion of Dejours’ work, see https://www.academia.edu/682432/Work_as_Transcendantal_Experience_Review_of_Recent_Publications_by_Christophe_Dejours.
- 61.
See European Directives on equality of treatment, op. cit.
- 62.
If problems at work cannot be resolved internally and an employer is failing in the duty to ensure health and safety at work, the worker may have recourse to the Direction générale du contrôle du bien-être [General Directorate for the Monitoring of Wellbeing at Work] whose role is to advise companies on wellbeing issues and monitor application of the law. It may oblige the employer to take action, but it cannot award compensation to the victim.
- 63.
I. Ferreras, Critique politique du travail. Travailler à l’heure de la société des services, Coll. Académique Presses de Sciences Po, Paris, 2007.
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van der Plancke, V. (2017). Psychosocial Risks and Belgian Labour Law: An Emphasis on Harassment. In: Lerouge, L. (eds) Psychosocial Risks in Labour and Social Security Law. Aligning Perspectives on Health, Safety and Well-Being. Springer, Cham. https://doi.org/10.1007/978-3-319-63065-6_8
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