There are important differences between the approaches that different countries take to address the issue of workplace bullying. This OnPoint provides an overview of the approaches taken in France, Germany, Russia, the UK and the USA. 

What recourse do employees have if they have been bullied?

Employees who have been bullied in the workplace can bring claims against their employers in each country covered by this OnPoint.

In France, the right to sue an employer for bullying arises from specific legal provisions in its labor code and criminal code that prohibit bullying.

In each of the USA, Germany, the UK and Russia, there is no single piece of legislation that regulates bullying specifically. However, an employee who has been bullied may bring a claim against their employer by using the instance(s) of bullying as the basis for claims for:

• constructive dismissal;
• harassment relating to a "protected characteristic" (in the USA or UK); or
• unlawful discrimination (in the case of the USA, Germany and the UK, relating to a "protected characteristic").

Can an isolated event qualify as bullying?

In the UK and the USA, an isolated instance of bullying can be sufficient to give an employee a right of action, particularly if it was related to a protected characteristic. In contrast, in France and Germany, an isolated event cannot generally be termed bullying and is unlikely to give an employee a right of action. In Russia, it depends on the result of the isolated instance, i.e., if it resulted, e.g., in unlawful dismissal then it gives an employee a right of action.

When is bullying most likely to arise?

Bullying occurs most often when the relationship between managers and their direct reports breaks down. This can happen for numerous reasons. One situation that often leads to allegations of bullying is when a formal or informal performance management process is initiated in an allegedly unfair or unduly aggressive manner.

Is it important that employers attempt to prevent bullying?

In all the countries covered by this OnPoint it is essential that employers attempt to mitigate the risks associated with bullying in the workplace. How effective preventative action is in mitigating an employer’s liability for any bullying that does occur varies according to the jurisdiction.

For example, in France and in Russia, employers have a strict obligation to ensure their employees are safe in the workplace. Accordingly, while having preventative policies in place may help to prevent bullying occurring, evidence of their existence shall not protect the employer from liability should bullying (or, in the case of Russia, similar actions e.g., unlawful dismissal) take place.

In the UK, an employer has a defence to a claim of harassment and/or discrimination if it can show that it took all reasonable steps to prevent such harassment and/or discrimination occurring. However, it is often difficult to show that all such steps have been taken and employers often decide not to run the defence as it would leave the alleged perpetrator of the act, who often remains an employee of the organisation, with sole liability for any compensation awarded.

In addition to implementing strategies that reduce the risk of bullying occurring in the workplace, employers should set out a framework for dealing with allegations of bullying. Such measures may include:

• implementing anti-harassment and bullying policies, which set out the types of conduct that are prohibited and the procedure for reporting any incidents of bullying or harassment; and
• providing anti-bullying training for managers.

Who is liable if an employee succeeds in a claim founded on bullying?

The perpetrator will be found liable, whether this is the employer itself or an individual employee. In the event that an individual employee is the perpetrator, their employer will often also be found liable.

In France, an employer may be liable under both civil and criminal law. However, employers are rarely found criminally liable.

In Germany, an employer is liable for infringing acts by managers and members of the managing or supervisory board. Note that employers may also be vicariously liable for bullying by third parties.

In the UK, anything that is done by an employee in the course of his or her employment that violates equality legislation is treated as having also been done by the employer. Accordingly, claims for discrimination and harassment can be brought against the individual perpetrator, their employer or both parties. As referred to above, the employer will have a defence against such a claim if it can show that it took all reasonable steps to prevent the discrimination/harassment from occurring.

In Russia, employers and their officers can be held liable under administrative, civil and criminal (with regard to officers) law.

What penalties will be imposed should an employee succeed in a claim founded on instances of bullying?

Penalties vary from one country to another and can be civil, administrative or criminal.

In France, employers may be liable for damages in civil law. If the act of bullying is also found to be a criminal offense, it is punishable by up to two years’ imprisonment and a fine of €30,000.

In the USA, where bullying is connected to a protected characteristic employers may be liable for compensatory and/or punitive damages.

In Germany, employees may:

• seek an injunction to prevent the employer from committing further acts of bullying;
• (in 'serious' cases only) refuse to work without loss of pay;
• demand a transfer to another existing job;
• (in 'serious' cases only) terminate the employment without notice and in any event within two weeks of the act of bullying; or
• seek contractual or tortious remedies.

In the UK, liability can be civil and/or criminal depending on the statute infringed. In most cases, liability will be civil only and the award is likely to be limited to compensatory damages for injury to the victim’s feelings, as well as for any other loss sustained by the employee.

In Russia, the law does not provide for direct liability for bullying. Instead, it provides for liability in specific circumstances which could be indirectly referred to as bullying. As a result, an employer and its officers may be held liable administratively and/or civilly (both, e.g., in cases of (i) non-compliance with the requirement to procure safe and comfortable conditions of labor to their employees, (ii) an illegal dismissal, (iii) infringement of employees’ dignity during their labor activity, etc.) or criminally (in the event of wrongdoings on the part of officers such as discrimination, violation of secrecy of correspondence, etc.).

Can unions or other employee representatives play a role?

In all the countries covered by this OnPoint, unions and employee representatives may be involved in either the prevention of bullying or in the resolution of any related disputes that arise between employers and employees. For this reason, it is good practice in all jurisdictions to involve unions and employee representatives in the creation of workplace anti-bullying policies from the outset.

In Germany, works councils have specific rights. In resolving disputes, employees may call for the assistance of the relevant works council, which may seek redress from the employer.

In Russia, unions or other employee representatives can become involved in a dispute in a variety of situations, such as in the event of the unlawful termination of employees, e.g. they can assist employees in bringing a claim against their employer.

In France, employee representative bodies can use their prerogative to investigate bullying cases themselves.

In the UK, unions and employee representatives may advise victims of bullying as to how to raise this with their employers, how to resolve the issues raised and how to claim compensation should this be appropriate in the circumstances. Unions and employee representatives who are engaged in the process and committed to mediation and conciliation can be an invaluable resource for both employers and employees.