Lawyer for Workplace Harassment in Madrid
Where is mobbing or workplace harassment currently punished in our legal system?
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Mobbing, or workplace harassment, is unfortunately a very present reality in current legal affairs. That is why our Criminal Code expressly regulates it as follows, in Article 173
Workplace harassment legislation
01 Degrading treatment, workplace harassment and property harassment
Anyone who inflicts on another person degrading treatment, seriously undermining their moral integrity, shall be punished with a prison sentence of 6 months to 2 years.
The same penalty shall be imposed on those who carry out against another person, in a repeated manner, hostile or humiliating acts which, without constituting degrading treatment, amount to serious harassment of the victim, provided that this takes place within an employment or civil-service relationship and that, moreover, they take advantage of their position of superiority to do so.
Those who, in a repeated manner, carry out hostile or humiliating acts which (without constituting degrading treatment) are intended to prevent a person from the lawful enjoyment of their home shall also be punished with the same penalty.
02 Habitual violence within the family
Anyone who habitually exercises physical or psychological violence against their spouse (or former spouse), a person linked to them by an analogous emotional relationship (or who has been), or against their ascendants, descendants or siblings (by nature, adoption or affinity), whether their own or those of the spouse or cohabiting partner, shall be subject to a more aggravated penalty (imprisonment of 6 months to 3 years, deprivation of the right to own and carry weapons for a period of 3 to 5 years and, where applicable, the penalty of special disqualification from exercising parental authority, guardianship, curatorship, custody or fostering for a period of 1 to 5 years. The latter only in cases where the judge or court deems it appropriate to the interest of the minor or of the person with a disability in need of special protection. All of this shall apply, without prejudice to the penalties that may correspond for offences committed when carrying out the specific acts of physical or psychological violence).
The same shall apply when the foregoing acts are carried out against minors or against persons with a disability in need of special protection (when they live with the perpetrator or when they are subject to parental authority, guardianship, curatorship, fostering or de facto custody, or to any other relationship that results in their integration into the family household, whether of the spouse or the cohabiting partner), as well as against those persons who, owing to their particular vulnerability, are placed in the custody or care of public or private institutions.
When one or more of the acts of violence are committed in the presence of minors, or using weapons, or in the shared home or in that of the victim, or are carried out in breach of one of the penalties set out in Article 48 of the Criminal Code, or of a precautionary measure, security measure or a prohibition, provided they are of the same nature, they shall be punished with the penalties cited above in their upper half. The measure of supervised release may also be imposed.
03 When does habituality exist?
As criminal lawyers specialising in this area, we know that the article itself, in its subsection 3, establishes that regard must be had to the number of acts of violence (duly proven) and their temporal proximity, regardless of whether such violence has been exercised against the same victim or against different victims among those mentioned in this article, and of whether the violent acts have or have not been tried in previous proceedings.
04 Minor insult or humiliation
Anyone who causes an unjust insult or humiliation, but of a minor nature, when the victim is one of the persons referred to in art. 173.2 of the Criminal Code, shall be punished with the penalty of permanent location (5 to 30 days, in a different home located away from that of the victim), or community service (5 to 30 days) or a fine (1 to 4 months). The fine shall be applied only in cases where the circumstances of Article 84.2 of the Criminal Code are present.
However, insults shall only be prosecuted when a complaint is filed, either by the aggrieved person or by their legal representative.
In which part of Article 173 of the Criminal Code is the offence of mobbing or workplace harassment found?
Mobbing, or workplace harassment, is specifically regulated in the second paragraph of the first subsection of Article 173 of the Criminal Code, in the manner we have already analysed above (The same penalty applies to anyone who, against another person and in a repeated manner, carries out hostile or humiliating acts which, without constituting degrading treatment, amount to serious harassment of the victim, provided that this takes place within an employment or civil-service relationship and that, moreover, the perpetrator takes advantage of their position of superiority to do so).
After the reform of the Criminal Code carried out by LO 5/2010 of 22 June, the need was established to combat those unacceptable conducts in the workplace which humiliate the persons against whom they are directed, commonly known as “mobbing”.
The reform was based, among other things, on the idea that the employer or manager must guarantee both the safety and the health of the workers, taking all necessary measures to that end. They must not allow harm or injury, whether physical or psychological, to any worker, which does not happen in cases where the mobbing we are analysing is permitted.
Moreover, they will not be free from blame even if such conducts are carried out by a person other than the employer or manager themselves, since the latter has the duty to identify and assess the risk of the work and also of their workers and, consequently, to adopt the necessary measures to eliminate mobbing, as provided by Articles 14 and 16 of the Occupational Risk Prevention Act.
