Law 73/2017 of 16 August 2017, which entered into force on 1 October, strengthened the legal framework for preventing and combating harassment at work in the private and public sectors by introducing amendments to the Labour Code and the General Law on Public Employment, which we will refer to below.
It should be noted that, according to Article 29(2) of the Labour Code, harassment at work is unwanted conduct that has the purpose or effect of (i) disturbing or embarrassing the worker, affecting his/her dignity; or (ii) creating an intimidating, hostile, degrading, humiliating or destabilising environment. This is a broad concept that covers many types of conduct, such as practices that are harassing to the employee, including, but not limited to, degrading remarks, racial, ethnic, gender or religious insults; that promote the employee’s isolation within the organisation; that lead to the employee’s functions becoming vacant; that impose the performance of tasks that do not correspond to the employee’s professional category; or that eliminate some of the employee’s remuneration components, thereby placing the employee in a difficult financial situation.
When the new law comes into force, companies with seven or more employees that do not already have a code of conduct to prevent and combat harassment at work will be required to adopt one, under penalty of committing a serious administrative offence.
Given that the law does not prescribe any minimum content for these codes of conduct, it will be up to each company to define the specific measures to be taken to prevent and combat harassment, as well as the appropriate means of publicising them. In our view, codes of conduct should inform workers of their rights by clarifying what is meant by harassment under the law, with concrete examples of harassing practices, as well as the employer’s obligations in this area. They should also include concrete measures to deter and report harassment practices and establish internal procedures for this purpose, including measures to protect whistleblowers and witnesses.
In addition to the obligation to adopt codes of good conduct to prevent and combat harassment at work, other significant changes have been made to labour law, which are summarised below:
– Employers are obliged to initiate disciplinary proceedings if they become aware of alleged situations of harassment at work, under penalty of committing a serious administrative offence;
– The Authority for Labour Conditions (“ACT”) should provide a dedicated e-mail address for formalising complaints of harassment at work;
– The practice of harassment by the employer or its representative, reported to the ACT, becomes a just cause for the employee to terminate his or her contract as an offence against his or her physical integrity, morals, freedom, honour or dignity;
– The employer is prevented from disciplining the whistleblower and the witnesses he or she has named for statements or facts contained in the records of judicial or administrative proceedings triggered by the harassment, until the final decision has been made, unless they can prove that they acted intentionally;
– In this sense, any disciplinary sanction, including dismissal, applied to the employee up to one year after the complaint or any other form of exercise of the rights related to equality, non-discrimination and harassment is presumed to be abusive;
– The employer is responsible for compensating the damage caused by occupational diseases resulting from the practice of harassment, with the Social Security paying for the compensation of said damage and subrogating itself to the position of the worker;
– The victim of harassment at work is entitled to compensation for pecuniary and non-pecuniary damages;
– The practice of moral harassment constitutes a very serious administrative offence, without prejudice to the criminal liability of the perpetrator;
– The ancillary sanction of publicity is not waived in the case of moral harassment, even if the perpetrator pays the fine immediately and has not committed any serious or very serious administrative offence in the last five years;
– Agreements to terminate an employment contract must now expressly mention the legal deadline of seven days for exercising the employee’s right to repent.