Workplace Bullying (Mobbing): What to Do

Definition

No statutory definition. The Federal Supreme Court defines mobbing as "a series of hostile statements and/or actions, repeated frequently over a fairly long period, by which one or more individuals seek to isolate, marginalise or exclude a person at their workplace" (ATF 125 III 70).

Key characteristics: hostile acts (humiliation, unjustified criticism, exclusion, work overload/deprivation, rumours), repeated (a single act is not mobbing), prolonged (weeks or months), intent or effect to harm.

Legal Bases

Personality Protection (art. 328 CO)

The employer must protect and respect the employee's personality, including psychological health.

Health Protection (art. 6 EA)

The employer must take all necessary measures to protect physical and psychological health. ArGV 3 specifies these obligations.

Employer Obligations (ATF 4A_245/2009)

Prevention: internal rules, charte, training; designated confidential contact person; information on prohibited behaviour.

Reaction: take reports seriously; conduct rapid impartial internal investigation; take necessary measures (warning, transfer, dismissal of perpetrator); protect the victim from retaliation.

Employee Remedies

During Employment

Signal the situation; put the employer on notice in writing (art. 328 CO); refuse to work (art. 324 CO) if conditions are unbearable (after notifying employer); petition the labour inspectorate (art. 6 EA).

After Employment

1. Damages (art. 97 CO or art. 41 CO)
2. Moral compensation (art. 49 CO) for serious personality violations
3. Unfair dismissal compensation (art. 336a CO) if termination is linked to mobbing

Prescription: five years for contractual claims (art. 128 ch. 3 CO).

Proof

Notoriously difficult. Document: chronological incident log (dates, facts, witnesses); copies of hostile written communications; medical certificates; colleague testimonies. ATF 130 III 321: the preponderance of probability standard applies.