Mobbing claims: persecutory conduct must be intentional

The Supreme Court has issued a decision (158/2016) concerning workplace harassment – so-called 'mobbing' – with specific attention to the intentionality of the persecutory conduct.

The case involved an employee who claimed against his employer for an injury that he alleged was related to the employer's mobbing conduct. In particular, the employee claimed that the injury derived from the employer having placed the employee on unemployment insurance and forcing him to take a short vacation.

The court noted that in order to be considered mobbing, the alleged misconduct must be sustained over a long period and occur with high frequency. Further, it must consist of a pattern of persecutory workplace behaviour undertaken by the employer as a form of 'psychological terrorism' with the intention of abusing the employee in multiple ways.

Case law has identified the following factors that must be present – and which the employee must prove – in order to make a workplace harassment claim for mobbing:

• The persecutory conduct – regardless of its lawfulness – must be carried out against the employee in a systematic and vexatious way, and be sustained over a long period of time.
• The conduct must be detrimental to the employee's mental or physical health.
• A causal link must exist between the conduct of the employer or the employee's immediate superior and the damage to the employee's physical or mental health.
• The persecutory conduct must be intentional.

In the case at hand, the Supreme Court upheld the appeal court's ruling that the employer's placement of the employee on unemployment insurance and order for him to take a short vacation did not constitute mobbing, because it could not be proven that the employer had clearly intended to marginalise and ostracise the employee in his working environment as a means of provoking him to resign. Without such evidence, the employer's liability could not be upheld.

For further information on this topic please contact Andrea Stanchi at Stanchi Studio Legale by telephone (+39 02 546 9522) or email (a.stanchi@stanchilaw.it).