Is it harassment? Navigating the gray areas at work

The legal framework on harassment at work is regulated by the Act of 4 August 1996 on the welfare of employees in the performance of their work and the Code on Wellbeing at Work. The Welfare Act defines harassment at work as follows:

"An unlawful set of multiple similar or different behaviors, whether outside or inside the company or institution, which take place over a period of time, the purpose or effect of which is to interfere with the personality, dignity or physical or psychological integrity of an employee or any other person covered by this section in the performance of his work, to endanger his employment or to create a threatening, hostile, insulting, humiliating or offensive environment, and which manifests itself in particular through words, threats, acts, gestures or one-sided writings."

The constitutive elements of harassment at work are the following:

• an unlawful set of behaviors or conduct;
• with a one-sided and repetitive character;
• during the performance of work;
• that have the effect or purpose of harming an employee's personality, dignity or physical or psychological integrity.

If any of these four conditions are not met, there is no harassment at work. For example, an isolated or one-off act will not suffice, nor is the subjective perception of the victim decisive. Indeed, the conduct must be objectively unlawful in nature, no matter how serious a person's subjective perception of distress. Further, harassment should not necessarily be intentional. Unintentional behavior can also result in harassment.

By way of example, case law accepted the following cases as harassment at work:

• The totality of inadequately worded reproaches that do not constitute sufficient justification for the decision taken, such as the blame imposed, combined with the failure to take into account the employee's statements and their repetition within a short period of time, is an expression of hostility, puts pressure on the employee and therefore constitutes harassment.
• Recurring emails and the systemic belittling attitude with communication to colleagues go beyond the employer's normal exercise of authority and constitute harassment.
• The existence of a deliberate strategy by an employee's hierarchical superior to drive him to burnout in order to thus isolate him from any position within the company, qualifies as harassment.
• A set of frequent and continuous mockery and misplaced remarks directed at a particular person that have led to depression and anxiety syndrome for the victim constitute harassment.
• A combination of two negative evaluations that did not follow the procedure of the work rules, the deliberate denial of any opportunity for professional advancement and isolation in a secluded place without equipment, files or telephone, all carried out with a deliberate strategy to make the employee resign, constitutes harassment at work.

Regarding harassment at work, employers are subject to a number of legal obligations. First, an employer is obliged to carry out a general risk analysis to identify situations that may give rise to psychosocial risks, including harassment. Subsequently, based on that risk analysis, every employer must take preventive measures to prevent or limit the situations and actions that may give rise to harassment at work. This could include, for instance, the introduction of a code of conduct on harassment or the organisation of training for employees in leadership positions on management style or the prevention of harassment at work.

Besides the general risk analysis, a risk analysis may also arise in a specific employment situation, for instance when complaints are received within a certain department about harassment behavior by a supervisor or team leader. In addition, an employer may also be required to take certain measures as part of a psychosocial intervention procedure. Finally, there is also the mandatory annual evaluation of prevention measures, and the employer must inform members of the health and safety committee and provide them with training on, among other things, the procedures accessible to workers and the request for a risk analysis of a specific work situation.

Apart from the fact that harassment is a form of morally reprehensible behavior, anyone who harasses at work risks being sanctioned with a level 4 sanction. Following the recent changes to the Social Criminal Code, this amounts to either a six-month to three-year prison sentence and a criminal fine equal to EUR 4,800 to EUR 56,000 or to either of those penalties alone, or an administrative fine equal to EUR 2,400 to EUR 28,000. Furthermore, if an employer fails to comply with its wellbeing obligations regarding, for example, the risk analysis, prevention measures or the psychosocial intervention procedure, he risks being sanctioned with a level 3 sanction. This amounts to either a criminal fine equal to EUR 1,600 to EUR 16,000 or an administrative fine equal to EUR 800 to EUR 8,000. It is therefore best for an employer to think twice if he does not take appropriate preventive measures to end the harm suffered by an employee who has filed a request for formal psychosocial intervention for acts of harassment.

In addition, employees can also claim damages to compensate for the (moral) harm caused by the harassment. In principle, this is a lump sum equal to three months' gross salary or the actual damage suffered. In case the unlawful conduct relates to a discrimination ground, the perpetrator is in a relationship of authority towards the victim or because of the seriousness of the facts, the compensation is increased to six months' gross salary.

Harassment can be distinguished from certain relational problems that occur in the workplace. For instance, harassment is not the same as a (hyper)conflict. A conflict is caused by tensions inherent in the working relationship. The Liège court of appeal pointed out that in hyper-conflict, the protagonists bear some of the responsibility for the events taking place. This can be distinguished from harassment at work, which necessarily involves objectively unlawful and repeated behavior that is one-sided and "perverse" in nature.

Stress and burnout are also not equivalent to harassment. According to the Brussels labor court, this is also the case when the employer creates a stressful working environment through poor organization or an unequal or inappropriate distribution of tasks.

In addition, having a certain management style or having an authoritarian and inadequate personnel policy is also not the same as harassment. For example, the Antwerp labor court of appeal ruled that failure to intervene (efficiently) in an employee dispute is at most a form of poor management, but is not in itself a form of harassment. Similarly, the Brussels labor court of appeal held that the concept of harassment does not include behavior that is part of the normal exercise of the employer's authority, even if the employee's subjectivity and possible vulnerability makes it difficult for him to deal with certain situations. In this sense, the Antwerp labor court of appeal held that a negative evaluation of an employee does not in itself constitute an indication of unlawful harassment behavior.

Finally, poor or difficult communication is also not the same as harassment. For instance, the Ghent labor court of appeal held that difficult communication or cooperation between an employer and an employee, for whatever reason, cannot be equated with harassment by one towards the other. Similarly, the Brussels labour court stated in this sense that although the lack of communication degenerated into a conflict and then into a lawsuit, it did not lead to the recognition of acts or facts constituting harassment.

Forewarned is forearmed. Preventing harassment at work not only benefits employee wellbeing or satisfaction levels within the company, but it also pre-emptively nips any civil or criminal liability of the employer in the bud.

As an employer, it is recommended to have a clear strategy based on the following three elements: responsibility, participation and a global approach. A responsible strategy implies that an employer complies with the legal obligations of prevention and protection at work and takes concrete action as soon as he is informed of harassment. A participative strategy entails the employer involving as many actors as possible (proactively) in the harassment policy such as the health and safety committee, the works council, management and HR, the prevention advisor and the employees themselves. Finally, it is also important to think about an overall strategy such as conducting a risk analysis and where a multidisciplinary approach is central. Depending on the company, the strategy adopted will need to be adequately applied at the level of the entire company, as well as at team or individual level.