In a recent ruling (dated Feb. 7, 2023, No. 3692), the Supreme Court clarified when mobbing damage occurs, starting from a case involving an employee’s demotion.
Mobbing and straining
According to the guidelines developed by the Supreme Court, it can be considered that mobbing at work can be configured where there is:
– The objective element, integrated by a continuous plurality of prejudicial behaviour to the employee
– The subjective one of the persecutory intent against the victim – the employee – and this regardless of the intrinsic illegitimacy of each behavior, if the intentional profile of the person engaging in the behaviors acts in an illicit sense even conduct otherwise abstractly legitimate.
In contrast, straining is configurable when there is stressful behavior carried out against an employee, even if the plurality of harassing actions is lacking.
Stressful work environment and health damage
Beyond designations, it is unlawful for the employer to allow, even negligently, the maintenance of a stressogenic environment.
In the present case, the territorial court had established a serious and protracted demotion causing damage to the employee’s health and an employer’s breach of obligations of appropriateness in personnel management, already relevant under Article 2087 of the Civil Code.
This rule tends to realize the protection of a general interest of employees and requires the employer to take the precautions that make the work environment safe regardless in concrete terms of needs related to the tasks performed.
The Supreme Court points out that it is clear that even the incidents not denoting a persecutory intent should necessarily have been appreciated in the general framework of the work affair. That’s for assess the overall legitimacy or otherwise of the employer’s behavior also with respect to the obligation to avoid the performance of the service in an unduly “stressful” context.
Stressful work situation and existence of bullying?
What also needs to be investigated, therefore, is the existence of a conflictual work situation of forced stress in which the employee is subjected to hostile actions. That needs to be done even if they are limited but enough to cause a constant and permanent negative change in the work situation, likely to affect his constitutionally protected right to health.
Ultimately, the employer is required to avoid, not only demotion and even more so, as in the case at hand, a deprivation of duties, but also “stressogenic” situations that give rise to a condition that, by its characteristics, severity, personal or professional frustration, may lead back to the form of mobbing damage, even in the case of lack of proof of a precise persecutory intent.
In conclusion, it becomes imperative, in this perspective, to pay attention to all behaviors, even in themselves not illegitimate, but such as may induce discomfort or stress. Behaviors detectable in isolation or instead are connected to other misconduct, contributing to exacerbate the effects and severity of the injury to personality and health broadly understood.