Harassment at the workplace
- Employers are required to ensure a working environment that is not harmful to the mental health of their employees.
- Violence at work means unjustified behaviour towards one or a group of employees with the aim of injuring, humiliating, degrading, or threatening.
- Sexual harassment is a form of discrimination.
Workplace bullying often grows out of a power struggle between individuals, which becomes bullying when one of the parties is placed in a weaker position relative to the other. The aim of this weakening of position is to deprive the victim of social contact with their other co-workers and, ultimately, to displace the victim from the working environment.
There is currently no legal definition of the concept of workplace bullying, i.e. the content of the concept has not been defined clearly in current laws. However, the laws do impose the following obligations on employers:
- An employer must ensure the protection of employees against discrimination, follow the principle of equal treatment, and promote equality in accordance with the Equal Treatment Act and Gender Equality Act (section 3 of Employment Contracts Act).
- An employer must ensure working conditions conforming to occupational health and safety requirements (clause 28 (2) 6) of Employment Contracts Act).
- In order to prevent damage to health arising from a psychosocial hazard, an employer must take measures, including adapt the organisation of work and workplace to suit the employee, optimise the employee’s workload, enable breaks to be included in the working time for the employee during the working day or shift, and improve the enterprise’s psychosocial working environment (subsection 91 (2) of Occupational Health and Safety Act).
In addition, employers and their employees must act in a loyal manner when performing their duties in the context of the employment relationship. The obligation of loyalty is described subsection 6 (1) and subsections 76 (1) and (2) of the Law of Obligations Act. Obligations must be fulfilled in accordance with the contract and the law, acting in good faith and observing the principle of reasonableness and taking customs and practices into account.
The concept of workplace bullying may be explicated by labour dispute resolution bodies. In case law, workplace bullying has been deemed to consist in hostile and unethical behaviour which is systematic and long-lasting and which is directed at one or more persons, who are put in a helpless and vulnerable position as a result.
Article 1(1)(a) of ILO Convention No. 190 defines violence and harassment in the world of work as a range of unacceptable behaviours, whether a single occurrence or repeated, that result in or are likely to result in physical, psychological, sexual, or economic harm. The term, thus defined, also extends to gender-based violence and sexual harassment.
Workplace bullying is characterised by:
- repeated negative actions performed over an extended period of time;
- the bully and the victim being in an unequal position;
- the victim being unable to defend themselves;
- an expanding process;
- intentional actions.
However, just because an employee is disturbed does not mean that workplace bullying is taking place. Bullying primarily involves unpleasant or degrading treatment against which it is difficult for the employee to defend themselves (judgment No. 3-17-164 of Tallinn Circuit Court).
Therefore, not every one-time conflict, misunderstanding, quarrel, etc. in a working environment qualifies as workplace bullying, as the latter requires repeated unpleasant behaviour to have occurred.
Violence at work
Violence at work is unjustified behaviour towards an employee or a group of employees with the aim of:
- degrading, or
- threatening the person.
The object of the attack may be the person’s dignity, professional skills or abilities, personal life, physical characteristics, race, sexual orientation or other issues.
Violence at work includes bullying, sexual harassment, and physical assault. Violence at work may be in the form of one-off incidents or more systematic patterns of behaviour and take place at different levels of the organisation (manager is violent against a subordinate or expressions of violence between subordinates).
Aggressive or violent behaviour is characterised by the following:
- uncivil behaviour – lack of respect for others;
- physical or verbal aggression – intention to injure;
- assault – intention to harm the other person.
Bullying and violence at work can have serious consequences, leading to low self-esteem, depression, sleep problems, and other stress-related health problems. In the extreme cases of bullying the resulting symptoms of stress are similar to those of post-traumatic stress disorder after a disaster or assault that can persist even years after the incident. This may be accompanied by social isolation, family problems, resignation or job loss and related financial problems. The bullying victim may become aggressive and, in turn, take the role of the bully. There are cases where violence at work has resulted in suicide.
External violence at work means the insults, threats, and physical or psychological attacks against an employee made by persons external to the organisation.
Those employed in the service sectors as well as in healthcare, transportation, retail, catering, financial and education sectors are in the risk group. Direct contact with customers increases the risk of violence.
Specific acts of violence may be unpredictable; however, there are situations where it is possible to foresee potential violence.
It is possible to identify the most common risk factors for employees:
- handling of goods, cash and valuables;
- isolated work;
- inspection, control and general authority functions;
- contact with certain types of customers – people who ask for loans, have been violent in the past or tend to be violent due to illness, are under the influence of alcohol or drugs;
- poorly managed organisations may increase aggression in customers: for example, product defects may leave the impression that products do not correspond to what was advertised, or the company has poor furnishings and inadequate service staff.
The consequences of violence range from demotivation and reduced pride in performing one’s duties, to stress and damage to physical or psychological health. Violence can cause fear, phobias and sleep problems. In general, the vulnerability of each individual varies depending on the context in which violence occurs and the personal characteristics of the victim.
Violence also impacts the work team because people who work in an environment of fear and resentment cannot give their best. In addition, violence at work has a psychologically devastating effect on fellow employees – studies show that employees who have witnessed violence have reactions similar to those of the victim. The negative effects on the organisation are reflected in increased absenteeism, decreased motivation, reduced productivity, deterioration of employment relationships and recruitment difficulties.
Prevention of violence takes place at two levels:
- at the first level, the aim is to prevent acts of violence from occurring or to reduce them;
- at the second level, support is provided for the victim to minimise the harmful effects of the incident.
Sexual harassment occurs where any form of unwanted verbal, non-verbal or physical conduct or activity of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating a disturbing, intimidating, hostile, degrading, humiliating or offensive environment.
For example, sexual harassment occurs in a situation where someone is touching or trying to touch a colleague or subordinate, even though it is clear that the touch is repulsive to the person being touched.
In the eyes of the law, sexual harassment is equated with sexual discrimination. In essence, sexual harassment is a form of workplace violence.
Code of conduct for employees
1. Do not keep your worries to yourself
If you do not feel safe at work because you are being attacked, threatened or bullied, contact an employees’ trustee, working environment representative or members of the working environment council appointed by employees for assistance and advice.
You can find more information on psychological self-help here.
2. Inform your employer
Inform your immediate superior, working environment specialist, manager, or members of the management board of your problem. Talking is not always enough, therefore you should also inform your employer in writing.
You can find the recommendations of the Commissioner for Equal Opportunities for contacting your employer here.
3. In the case of physical violence, be sure to contact the police.
4. Contact the Labour Inspectorate
If the measures taken and resources provided by the employer do not ensure the safety and security of the working environment or if the employer refuses to address the problem, contact the Labour Inspectorate. The contact details of the Labour Inspectorate are available here.
5. In the case of discrimination, contact the Gender Equality and Equal Treatment Commissioner for an opinion
Anyone who feels that they have been discriminated against on the basis of gender, nationality, race or skin colour, religion, beliefs, age, disability, or sexual orientation is welcome to contact the Commissioner for Equal Opportunities. The Commissioner’s office also provides assistance if a person has been discriminated against on the basis of parenting, family responsibilities, or trade union membership.
The Commissioner’s office provides legal aid on how the Gender Equality Act and the Equal Treatment Act protect the person, what their rights are and how they can protect their rights. In addition, the Commissioner will explain where else you can turn to further defend your rights. Within the limits of their respective competences and possibilities, the Commissioner can advise and assist people in the submission of applications and actions to the labour dispute committee, and issue opinions on the occurrence of possible discrimination. The contact details of the Commissioner are available here.
6. Demand from the employer the removal of workplace violence and/or discrimination and the payment of damages
Employees also have to follow the principle of good faith and reasonableness and make every possible effort to prevent the extraordinary cancellation of the employment contract by providing the employer an opportunity to resolve the situation, unless the continuance of work is related to a real threat to the employee’s life, health, morals or good name.
The claim for the compensation of damage does not only arise due to the discrimination of an employee, but also in other cases where the health of an employee is damaged due to the working environment. Pursuant to clause 14 (5) 6) of the OHSA, an employee has the right to receive compensation for damage caused to his or her health by the work to the extent provided for in the Law of Obligations Act.
To put an end to discrimination, unequal treatment and workplace violence, and to demand compensation for the damage caused, you can contact the labour dispute committee or court or, to commence the conciliation procedure, the Chancellor of Justice.
7. If nothing else works, cancel the employment contract
If all above means have been exhausted but the continuation of work still seems impossible, you may consider cancelling the employment contract and finding a new job in the interests of your own health.
If the employer does not react upon the repeated requests of the employee or if the employee is unable to continue the employment relationship due to a fundamental breach by the employer, then pursuant to subsection 91 (2) of the Employment Contracts Act, the employee has the right to cancel an employment contract extraordinarily.
Upon cancellation of an employment contract due to the above reason, an employer must pay an employee compensation to the extent of three months’ average wages of the employee. A court or a labour dispute committee may change the amount of the compensation, considering the circumstances of the cancellation of the employment contract and the interests of both parties.
It should be borne in mind, however, that, under subsection 196 (2) of the Law of Obligations Act, if non-performance of a contractual obligation by the other party provides good reason for cancelling the contract, the contract may only be cancelled if the other party fails to render a conforming performance within a reasonable term granted in relation to this. Hence, the employee must have tried to resolve the issue peacefully by giving the employer a warning before resorting to extraordinary cancellation. This warning should include a description of the non-performance as well as of the consequences of continued non-performance. Ideally, the employee should also propose methods for resolving the issue. For example, workplace bullying that causes severe damage to mental health can be grounds for refusing to perform work or even for cancelling the employment relationship extraordinarily. Incidents may be recorded, but the employee should be prepared for the eventuality of such recordings being rejected as evidence in a labour dispute. In any case, employees should not pursue extraordinary cancellation of their employment contract pursuant to subsection 91 (2) of the Employment Contracts Act as a first resort, but only if giving the employer a written warning has failed to yield results. Upon cancellation of an employment contract for the reason described above, the employer must pay the employee compensation equal to three months’ average wages of the employee. A court or a labour dispute committee may change the amount of the compensation, considering the circumstances of the cancellation of the employment contract and the interests of both parties.
- record any incidents of bullying and gather evidence of the bullying;
- issue one or more warnings to the employer;
- if there is hope for the matter to be remedied, consider pursuing conciliation proceedings;
- if the measures above fail to yield results, refuse to perform work or cancel the employment relationship extraordinarily and be prepared for a potential dispute;
- seek help from a mental health professional at any time if needed.
How to prevent conflicts in an employment relationship
In an employment relationship, both the employer and the employee can take action to prevent conflicts:
- if you notice a risk of conflict, communicate;
- identify the causes of unexpected hostility;
- be friendly, sympathetic, and co-operative;
- when collaborating on the performance of duties, come to a clear agreement on what needs to be done;
- ask whether and how the other party has understood you;
- provide assistance if necessary.
Code of conduct for employers
1. Identify the problem
- include risks related to workplace violence in the assessment of risks in the working environment;
- carry out periodic employee satisfaction surveys or prepare a short questionnaire to identify signs of violence at work;
- provide employees with the opportunity to contact the management anonymously.
2. Decide which actions to take to reduce risks
- draw up an action plan for preventing and dealing with cases of violence at work;
- establish specific rules of conduct for employees and make the organisation’s values clearly known, including that there is a zero-tolerance policy for harassment and/or bullying;
- define which actions are acceptable and which are unacceptable to the employer;
- inform employees of where and how they can get help in the event of bullying;
- appoint contact persons who will act as mediators for resolving issues, i.e. individuals to whom the employees can turn with their problems, and specify how incident-related information is to be transmitted within the organisation and outside of it;
- explain the roles of managers, immediate superiors, contact persons, working environment specialists, working environment representatives, employees’ trustees, and trade union representatives;
- create mitigation mechanisms for resolving difficult situations (e.g., making working times more suitable for an employee, arranging counselling for employees, providing access to a psychologist, establishing procedures for resolving conflicts);
- provide training or self-improvement opportunities in the areas of communication, conflict management, and negotiation;
- enable employees to take sufficient breaks in their daily work; encourage and foster considerate communication by organising company events, themed days, etc.
3. Take action
Implement the planned activities and record all signs of violence at work. Maintain accurate records:
- What happened (description of the case)?
- When and where did the incident occur?
- Who was involved (victim, bully/abuser/attacker, witnesses/eyewitnesses)?
- What was the consequence of the incident? The mental/physical damage inflicted on the persons involved and the organisation as a whole, the time spent on this case.
- What actions were taken to resolve the situation?
4. Check the result of the actions, starting from step one and identify the problem
Keep in mind that the employer has the right and opportunity to:
- give a warning to the violent employee;
- reorganise the work and place the employee in another workroom or department;
- extraordinarily cancel the employment contract of the violent employee pursuant to subsection 88 (1) of the Employment Contracts Act, if the above measures have not been successful;
- demand the payment of damages from the employee if the latter’s actions have caused material damage to the employer.
Role of employer as mediator and conflict arbiter
When a conflict arises between employees, the employer is in a good position to mitigate or even resolve the conflict by stepping into the role of mediator or arbiter. To do this:
- choose a less busy hour and a suitable environment and create a favourable atmosphere;
- the rules (confidentiality, avoiding of insults and accusations);
- the expectations of the participants;
- listen to the parties to the conflict:
- establish what party A believes happened and how they feel about it;
- establish what party B believes happened and how they feel about it;
- state your expectations as the employer and make the suggestion to consider as many solutions as possible;
- focus on the proposed solutions and propose some of your own;
- together, analyse the pros and cons of each solution and determine which solutions are compatible with the interests of both parties;
- choose one that is acceptable to both, while making sure that it is also feasible for the employer.
Conflicts should be resolved in a way that leaves no one to suffer for longer than is necessary. However, if one of the parties is only participating superficially, it will be impossible to deal with the conflict properly.
Guide for witnesses to bullying:
- step in;
- do not join in on the actions of the bullies or the perpetrators of violence at work, as this could cause bullying to spread in the organisation;
- talk to the victim, express sympathy with them, and encourage them to seek help;
- report the incident to your immediate superior, the human resource manager, an employees’ trustee, a working environment representative, or the head of the company;
- remind the bully of the organisation’s values.
1. Counselling services of the Labour Inspectorate:
- explanations regarding the concept and nature of violence at work and how employees and employers should react;
- instructions on how to approach an employees’ trustee, working environment representative, the employer’s human resources department, one’s immediate superior, or the head of the company for resolving the situation;
- explanations regarding which specialists and agencies an employee can turn to in such a situation (psychologist, psychotherapist, psychiatrist, Gender Equality and Equal Treatment Commissioner, Chancellor of Justice, victim support and prevention services specialists at the Social Insurance Board, police);
- explanations regarding the conciliation proceedings;
- explanations of how to submit tips to the Labour Inspectorate for exercising supervision;
- explanations regarding options for cancelling the employment contract;
- explanations regarding the settlement of labour disputes;
- explanations regarding obtaining legal aid.
2. In a petition or action filed with a labour dispute committee or court, it is possible to claim the following:
- an employee who has cancelled their employment contract extraordinarily pursuant to subsection 91 (2) of the Employment Contracts Act may claim, via a labour dispute resolution body, compensation equal to three months’ average wages of the employee. The labour dispute resolution body may change the amount of the compensation, considering the circumstances of the cancellation of the employment contract and the interests of both parties;
- an employee may also file a claim for compensation for non-patrimonial damage against their employer; According to subsection 128 (5) of the Law of Obligations Act, non-patrimonial damage means, primarily, physical and emotional distress and suffering caused to the aggrieved person (so-called moral damage, which may include discrimination or ill-treatment by one’s employer). Any claims must be substantiated and the damage suffered must be proven. The law does not provide for an amount for claims for damages – this needs to be determined by the claimant. See also the analysis of the judicial practice of the Supreme Court on compensation for non-patrimonial damage.
Labour dispute committees conduct conciliation proceedings. Conciliation proceedings are a simplified process for the settlement of a labour dispute by the chairman of the labour dispute committee. Conciliation proceedings:
- are a voluntary process, which means that both parties must agree to conciliation;
- are aimed at helping to lead the parties to a resolution of the matter by consensus;
- are a fast process, as it only lasts 10 business days after acceptance of the petition;
- can be initiated by submitting a similar petition as for ordinary proceedings. The petition must include a statement requesting conciliation proceedings and an agreement proving that the other party also agrees to the conciliation proceedings;
- which have been initiated as the first step in settling a labour dispute via a labour dispute committee and which have proven unsuccessful may be terminated in favour of ordinary proceedings to proceed with the settlement of the dispute;
- which have concluded with a settlement agreement preclude the agreement from being challenged in court like ordinary decisions of a labour dispute committee. Litigation can only be pursued if the conciliation body has materially violated the norms established for conciliation proceedings and the violation affected or could have affected the content of the agreement.
3. Supervision by the Labor Inspectorate
- The Labour Inspectorate exercises state and administrative supervision with respect to compliance with the Employment Contracts Act and the Occupational Health and Safety Act.
- When exercising supervision over an employer, labour inspectors of the Labour Inspectorate have the right to investigate:
- whether and how the employer has assessed, among other psychosocial risk factors, the risk of violence at work and workplace bullying;
- whether the employer has drawn up an action plan for preventing and dealing with cases of violence at work;
- whether the employer has appointed persons who will act as mediators for resolving issues, and how incident-related information is transmitted within the organisation;
- whether and how the employer registers cases of violence at work;
- whether the employer has explained to their employees the role of immediate superiors, contact persons, working environment specialists, working environment representatives, employees’ trustees, and trade union representatives in the resolution of conflicts.
- During supervision, explanations are provided to employees about the jurisdiction of the Labour Inspectorate and the possibilities for and extent of intervention by a labour inspector;
- Where necessary, information is provided regarding the options for contacting the police, the Gender Equality and Equal Treatment Commissioner, a labour dispute committee or a court, for appealing to the Chancellor of Justice to initiate conciliation proceedings, and for cancelling an employment contract;
- The supervision proceedings of the Labour Inspectorate do not provide an assessment of whether a situation constitutes workplace bullying and/or discrimination or deal with the resolution of individual cases, instead the working environment and the activities of the employer are observed and assessed as a whole during the proceedings;
- The Labour Inspectorate may not intervene in disputes between two persons in private law. Where a disagreement that has arisen in the context of an employment relationship cannot be resolved through negotiations between the parties – for example, if the employer finds that the case is not one of violence at work – the employee may turn to the labour dispute committee to initiate conciliation proceedings or refer the labour dispute to a labour dispute resolution body (court or labour dispute committee), who will provide a substantive ruling on and a legal assessment of the matter.
- Anni Koha: vahel võib töökius viia ka oksendamiseni töökoha parklas (Sotsiaalministeeirum)
- Töövägivald, kiusamine ja diskrimineerimine töökohal
- Töövägivalla käitumisjuhend
- Psühhosotsiaalsed ohutegurid tööl
- Kolmanda osapoole vägivald (ROTAL)
- Käsiraamat naistevastase vägivallaga tegelemiseks (ILO ja UN Women, inglise keeles)
- Töökeskkonna vaimse tervise analüüs (Sotsiaalministeeriumi analüüs)
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