As of today, all employers should pay attention to the new legal provisions on the moral harassment at the workplace provided by Law no. 167/2020, which amends and completes both Government Ordinance no. 137/2000 for prevention and sanctioning of all forms of discrimination and Law no. 202/2002 on the equality of chances and treatment between men and women.
The main novelty elements brought by this law is represented by the definition of moral harassment at the workplace – in addition to the existing legal definitions of harassment, sexual harassment and psychological harassment – as well as by the high fines and measures which can be imposed to employers in case of non-compliance.
The concept of moral harassment at the workplace is not a new one, this being included into the general one of harassment and confirmed by the existing practice. Anyhow, the detailed definition of this concept and the high fines will determine employers to be more aware by this phenomenon that has been increasing over time and the necessity to be avoided or combated.
As per the definition provided by Law no. 167/2020, the moral harassment at the workplace involves the fulfillment of specific cumulative conditions, as follows:
- The victim must be an employee;
- The stalker may be the employee’s hierarchical superior, a subordinate or a peer;
- The conduct must be in relation to the work relations and may be manifested in any of the following forms: hostile or unwanted conduct, verbal comments, actions or gestures;
- The purpose/effect must be the deterioration of the work conditions by harming the employee’s rights or dignity, by affecting his physical or mental health or by compromising his professional future.
The moral harassment at the workplace involves also any conduct which, by its systematic nature, may affect the physical or mental integrity of an employee or group of employees, jeopardizing their work or degrading the work environment; this includes also stress and physical exhaustion.
The employee who perpetrates a deed of moral harassment at the workplace is liable as per the law and the employer’s internal regulations and could be sanctioned with a fine between Ron 10,000 and Ron 15,000 (roughly between EUR 2,000 and EUR 3,000).
Law no. 167/2020 brings an important obligation for employer, namely to take any necessary measures for prevention and combating the deeds of moral harassment at the workplace, including the provision into the internal regulations of disciplinary sanctions for the employees who perpetrate this type of deeds. Employer’s failure to observe this obligation may be sanctioned with fine between Ron 30,000 and Ron 50.000 (roughly between EUR 6,000 and EUR 16,500).
Moreover, as per the law, the employer cannot establish rules or internal measures that oblige, determine or urge employees to perpetrate acts ordeeds of moral harassment at the workplace. Employer’s failure to observe this obligation may be sanctioned with fine between Ron 50.000 to Ron 200.000 (roughly between EUR 16,500 and EUR 66,000).
The victim must prove the factual elements of the moral harassment; the burden of proof is on the employer as per the law. The intention to produce a prejudice by deeds of moral harassment at the workplace does not have to be proved.
Law no. 167/2020 lists the measures which may be imposed by courts or by the National Council for Prevention of Discrimination, including reinstatement of employees, payment of indemnifications equal to unpaid salaries, compensations for moral damages, covering the costs with psychologic counselling, etc.
Considering the new legal obligations, besides the amendment of the internal regulations, the employer should implement also additional measures for prevention and combating the deeds of moral harassment at the workplace. Although not expressly provided by law, these measures could be in the form of trainings and/or internal policies which should exemplify and bring awareness to the practical meaning of the concept of moral harassment at the workplace and to its consequences.
It is important to underline that Law no. 167/2020 is of immediate application, no term being provided thereby for employers to implement it.
Authors: Ileana Lucian, Silvia Dumitrache