Legal Frameworks for Preventing Work-Related Bullying and Harassment and Ensuring Access to Remedies for Targets

Rachel Cox and Katherine Lippel

Introduction 649

Standard Setting on Occupational Violence and

Harassment at the ILO 651

Prevention 655

Addressing Root Causes 655

Placing Bullying and Harassment Within

Systematic Approaches to OHS 656

Mobilizing a Variety of Actors 659

Recourse and Remedy 661

Definitional Issues 662

The Role of Intent 664

Remedial Powers 664

Timeliness 664

Workers’ Compensation 665

Complexity and Fragmentation 665

Penal and Criminal Legislation 666

Conclusion 668

Bibliography 669

Introduction

This chapter addresses the strengths and weaknesses of legal interventions for the prevention and management of work-related bullying and harassment. We use the term work-related bullying and harassment to refer to both discriminatory (on the basis of sex. race, disability, etc.) and non-discriminatory forms of bullying and harassment at work (Lippel, 2010).

Historically, employees have often found that the law does not offer them adequate protection from bullying and harassment in the workplace, nor provide them with satisfactory recourse should they become targets of such behaviour. Concerted struggles to put an end to work-related bullying and harassment have often catalyzed around calls for adoption of a specific law or for incorporation of new provisions into existing legislation (Cox. 2010; Duffy, 2009; Yamada, this volume). A campaign for legislative reform raises awareness about the seriousness and high costs of bullying and harassment and the need for better protection from it in the workplace. If legislation is adopted, the law then plays an important symbolic (and pedagogical) role in affirming that bullying and harassment is a workplace risk worthy of public intervention and concern, and provides legitimacy and impetus for workplace action on the issue (Lippel and Cox, 2018).

However, beyond the symbolic role of the law, questions remain about the optimal design of legislative and other regulatory interventions to prevent bullying and harassment, and to provide redress for its harms. What works? What doesn’t? Is recognition of a specific right to a work environment free from bullying and harassment essential? Can effective regulation of bullying and harassment be achieved simply by applying general legal provisions, for example, through the employer’s duty of care under occupational health and safety legislation? There is no one answer to these questions. The meaning of effective legal regulation of bullying and harassment is very context-specific (EU-OSHA. 2018; D'Cruz et al., 2016). Due to ‘constitutional complexities and historical silos’ (Johnstone. 2017), even within countries such as Canada or Australia, provinces or states may have multipronged legislative frameworks including labour and employment law, human rights law, occupational health and safety law and workers’ compensation law. or even recourse under constitutional or civil law. as well as specific legislation on bullying and harassment (Pinkos Cobb, 2017). A paucity of legal decisions on bullying and harassment may mean that dispute resolution mechanisms for complaints are generally working fairly well, or alternatively, that targets are reluctant or unable to use formal legal avenues of redress. Empirical research is essential in order to understand the effectiveness of different legislative frameworks on bullying and harassment in different countries (Hoel and Einarsen. 2010; Jespersen et al., 2016), yet to date there has been little of it (Lippel and Cox, 2018).

This chapter first examines developments in standard setting at the International Labour Organization (ILO) completed in June 2019. It then turns to specific considerations for evaluating the potential of different legislative frameworks to prevent bullying and harassment and to ensure recourse and remedy for targets.

Standard Setting on Occupational

Violence and Harassment at the ILO

In 2016, the Gender, Equality and Diversity Branch (GEDB) of the ILO commissioned a working paper that provided an overview of various regulatory approaches to workplace violence around the world in light of the literature published in English, French and Spanish (Lippel, 2016; see also a follow-on report by Pillinger, 2017 on trade union perspectives on workplace violence). The initial report discusses non-legal definitions of workplace violence, including both physical and psychological violence, causes and consequences of workplace violence and offers an overview of regulatory strategies. A gender lens is integrated throughout the working paper, which underscores categories of violence that disproportionately affect women, including sexual violence, domestic violence and, in some countries, bullying and psychological harassment. The report also underlines that in certain occupational sectors where women are disproportionately present, such as health care, education and domestic work, violence in all its forms is disproportionately pervasive as compared to other sectors. In other sectors, such as public transportation, men are disproportionately present and affected by violence.

The GEDB was successful in placing the discussion of an international Convention on violence in the workplace on the agenda of the International Labour Conference. In June 2018 it resolved to include ‘Violence and harassment in the world of work’ on the agenda of the centenary meeting of that body to be held in June 2019 for the purpose of adopting both a Convention and a Recommendation, the first international Convention focusing on violence in the workplace. Contrary to the various reports and debates leading up to the standard setting process, which explicitly mention bullying and psychological harassment, the language used in the formal Convention and

Recommendation drafts simply refers to ‘violence and harassment' and ‘gender-based violence and harassment’. In discussions at the International Labour Conference held in May-June of 2018, delegates representing some countries and employer delegates stated that they would prefer a more detailed definition of the term violence. From their statements in the record, it appears that they interpreted violence to include only physical violence and discriminatory harassment, and in some cases perhaps only physical violence and sexual harassment (International Labour Office, 2018b). However, in its final iteration, bullying and psychological harassment clearly fall within the scope of the definitions adopted in the Convention.

The Convention provides a broad definition of violence and harassment in Article 1(1):

For the purposes of this Convention:

• (a) the term ‘violence and harassment' in the world of work refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment:
• (b) the term ‘gender-based violence and harassment' means violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment.

Article 1 (2) provides that:

Without prejudice to subparagraphs (a) and (b) of paragraph 1 of this Article, definitions in national laws and regulations may provide for a single concept or separate concepts.

Article 7 provides that

Without prejudice to and consistent with Article 1. each Member shall adopt laws and regulations to define and prohibit violence and harassment in the world of work, including gender-based violence and harassment.

In Article 4, the Convention requires member states to take a series of measures:

1. Each Member which ratifies this Convention shall respect, promote and realize the right to a world of work free from violence and harassment.

• 2. Each Member shall adopt, in accordance with national law and circumstances and in consultation with representative employers’ and workers’ organizations, an inclusive, integrated and gender-responsive approach for the prevention and elimination of violence and harassment in the world of work. Such an approach should take into account violence and harassment involving third parties, where applicable, and includes:
  • (a) prohibiting in law violence and harassment;
  • (b) ensuring that relevant policies address violence and harassment;
  • (c) adopting a comprehensive strategy in order to implement measures to prevent and combat violence and harassment;
  • (d) establishing or strengthening enforcement and monitoring mechanisms;
  • (e) ensuring access to remedies and support for victims;
  • (f) providing for sanctions;
  • (g) developing tools, guidance, education and training and raising awareness, in accessible formats as appropriate; and
  • (h) ensuring effective means of inspection and investigation of cases of violence and harassment through labour inspectorates or other competent bodies.

In its subsequent articles it proceeds to detail measures required of member states for the protection of workers and the prevention of violence, and specifies enforcement requirements and the obligation to provide remedies for targets, and protection against victimization of witnesses, whistleblowers and complainants. It also requires states to monitor and enforce the legislation.

Of particular note is article 9 providing for prevention measures:

Each Member shall adopt laws and regulations requiring employers to take appropriate steps commensurate with their degree of control to prevent violence and harassment in the world of work, including gender-based violence and harassment. and in particular, so far as is reasonably practicable to:

(a) adopt and implement, in consultation with workers and their representatives, a workplace policy on violence and harassment;

• (b) take into account violence and harassment and associated psychosocial risks in the management of occupational safety and health;
• (c) identify hazards and assess the risks of violence and harassment, with the participation of workers and their representatives, and take measures to prevent and control them; and
• (d) provide to workers and other persons concerned information and training, in accessible formats as appropriate. on the identified hazards and risks of violence and harassment and the associated prevention and protection measures, including on the rights and responsibilities of workers and other persons concerned in relation to the policy referred to in subparagraph (a) of this Article.

The Convention thus mandates management of workplace psychosocial risk factors that can lead to workplace violence, including bullying and harassment, and therefore allows for integration of prevention approaches based on the psychosocial safety climate literature (Bailey et al., 2015; Tuckey et al., 2009) and the general literature on psychosocial risk factors for workplace bullying (Baillien et al., 2009; Salin and Hoel, this volume).

These factors will no doubt be relevant to the implementation of the Convention, in particular in light of the Recommendation that was adopted to accompany the Convention. Article 8 of the Recommendation provides guidance with regard to the implementation of workplace risk assessments:

• 8. The workplace risk assessment referred to in Article 9(c) of the Convention should take into account factors that increase the likelihood of violence and harassment, including psychosocial hazards and risks. Particular attention should be paid to the hazards and risks that:
  • (a) arise from working conditions and arrangements, work organization and human resource management, as appropriate;
  • (b) involve third parties such as clients, customers, service providers, users, patients and members of the public; and
  • (c) arise from discrimination, abuse of power relations and gender, cultural and social norms that support violence and harassment.

Given that this new international standard now commands a heightened level of importance for legal regulation of violence and harassment in the world of work, broadly defined, new regulations will undoubtedly be developed and current regulations may be strengthened in many countries.

The second part of this chapter discusses the potential pitfalls and relative strengths of different legislative interventions aimed at protecting workers from bullying and harassment and offering recourse and remedy to targets. Drawing on examples from a variety of countries, we examine legal approaches to prevention of bullying and harassment at work, recourse and remedy for targets, and briefly, punishment of perpetrators through penal and criminal law.

Prevention

Campaigns for adoption of laws against bullying and harassment tend to focus on the tragic consequences for targets and the injustice created when they are left without adequate recourse or remedy. Individual recourse is undeniably an essential component of an overall legal framework for managing bullying and harassment. However, until now, insufficient attention has been paid to legislative frameworks for prevention of bullying and harassment (Lerouge, 2017, p. 395).

Legal approaches to prevention of bullying and harassment can be analysed according to:

• 1. the potential of the legislation to address the underlying or root causes of this phenomenon;
• 2. the integration of prevention of bullying and harassment into broader legislation for prevention of workplace risks;
• 3. the capacity of the legislation to mobilize a wide variety of actors to implement, monitor compliance with and enforce the legislation.

Addressing

Root Causes

In global terms, bullying and harassment at work is often associated with w'ork intensification, employment precariousness, deficient w’ork organization and management strategies such as lean management (Lippel, 2019; see also Salin, this volume, and Vartia and Zapf, this volume). More specifically, organizational risk factors resulting from deficient work organization, poor job design, tyrannical or laissez-faire organizational culture, authoritarian leadership styles, reward systems and competition are associated with workplace bullying and harassment (Bluff, 2016; Salin and Hoel, this volume). As reflected in the importance placed on prevention in the ILO Convention on violence and harassment, until the psychosocial risk factors, or determinants, that lead to bullying and harassment are addressed and a climate of psychosocial safety in the workplace is considered a priority, inevitably, bullying and harassment will continue to be an issue.

With initial legislation adopted in 2002, Belgium was a forerunner in the legal regulation of work-related harassment. In 2014, Belgium extended its legislation on harassment to require risk assessments and prevention measures that address all psychosocial risks, rather than just violence, ‘moral’ or psychological harassment and sexual harassment (Pinkos Cobb, 2017, p. 29; van der Plancke, 2017). As well as reinforcing the independence and impartiality of the support offered to targets through the personne de confiance (translated alternatively as a ‘person of confidence’ (Lerouge, 2017), ‘trustworthy person’ (van der Plancke, 2017) or ‘confidential mediator’ (Pinkos Cobb, 2017, p. 32), Belgium’s 2014 reform also extended protection to all types of measures taken in retaliation against workers who use the provisions (Pinkos Cobb, 2017, p. 29).

Placing Bullying and Harassment Within Systematic Approaches to OHS

Adopted in 1989, the European Union Framework directive on Occupational Health and Safety (OHS) sets out a general duty for employers to ensure the health and safety of workers in every aspect related to the work (article 5(1)), and it is widely accepted that this duty extends to psychosocial risks in the workplace (Leka etal., 2011). Just as Article 9 of the ILO Convention calls for employers to integrate harassment and associated psychosocial risks in the management of occupational safety and health, authors in several countries have pointed out that one of the most obvious ways to address the root causes of bullying and harassment is through a systematic approach to managing psychosocial risks under OHS legislation (Caponecchia and Wyatt, 2009; Cox, 2017; Potter et al., 2019; Velazquez, 2017).

In a provision that came into force in 2016, Sweden extended the reach of its legislation on prevention, the Work Environment Act 1977, to explicitly include systematic management of risks related to the ‘organizational and social work environment', requiring employers to address issues such as workload, working hours, unclear work assignments, and lack of cooperation between workers as well as harassment (Steinberg, 2017). These provisions have proven to be particularly useful for women workers in the care sector. They illustrate the fact that, in general, protection from bullying and harassment and preventing workplace stress are closely related issues (ILO, 2016).

Integrating bullying and harassment into systematic OHS management allows for prevention to tap into an existing regime that typically includes an inspectorate with wide-ranging powers to monitor and enforce legislation and regulations in the workplace. OHS regimes generally include a general duty of care on the part of the employer to take the necessary measures to protect the health and ensure the safety of workers. They also include duties for workers (including bystanders) to take reasonable care for their own health and safety and the health and safety of others, and to collaborate in achieving the goals of protecting health and ensuring safety in the workplace (Potter et al., 2019).

Bullying and harassment tend to be defined quite narrowly in legislation recognizing a specific right to a work environment free from bullying and harassment. Moreover, absent any other formal recourse in case of organizational injustice or stressful or psychologically unhealthy working conditions, employees have a tendency to resort to complaints of harassment even if the problem they are experiencing—troubling though it may be—does not necessarily meet the legal definition of bullying or harassment (Cox, 2014; Hoel and Einarsen. 2010). Placing bullying and harassment in an OHS framework in which it is embedded in a broad range of psychosocial risks has the benefit of avoiding premature dismissal of complaints that do not necessarily meet all the criteria of the legal definition of violence, harassment or bullying, but nonetheless pose a hazard to workers’ health. As an example, since the mid-1990s, the Norwegian Working Environment Act protects employees against ‘harassment or other improper conduct’ as well as violence, threats and even ‘undesirable strain as a result of contact with other persons’ (Arbeidsmiljploven, 2005, as amended). Section 4-3 of the Act sets out requirements regarding the psychosocial working environment and reads as follows:

• (1) The work shall be arranged so as to preserve the employees' integrity and dignity.
• (2) Efforts shall be made to arrange the work so as to enable contact and communication with other employees of the undertaking.
• (3) Employees shall not be subjected to harassment or other improper conduct.
• (4) Employees shall, as far as possible, be protected against violence, threats and undesirable strain as a result of contact with other persons.

Furthermore, the absence of a fixed or detailed legislative definition for bullying and harassment in OHS legislation can be an advantage, allowing for a scalable approach focussing on outcomes rather than means, which, for example, would allow for expansion of the traditional notion of bullying and harassment to include cyber harassment (Bennett Moses, 2017; D'Cruz and Noronha, 2014). Finally, protection against reprisals is vital to any legislative framework where action to stop bullying and harassment is predicated on targets speaking out (Ballard and Easteal, 2018). OHS legislation generally offers good protection against retaliatory action (as does general labour law legislation, in some countries), often with a reversal of the burden of proof that provides better success rates than when the onus of proof rests entirely on the shoulders of the complainant. In this respect, treating reprisals related to reporting of bullying and harassment through an OHS framework can help to ensure the effectiveness of the overall legislative framework for bullying and harassment.

Although it may help with prioritization of bullying and harassment and other psychosocial workplace risks (Leka et al., 2011), we note that there is no inherent need for explicit recognition of bullying and harassment as a work-related risk for it to be managed under OHS legislation. To illustrate, the Basque Region in Spain developed model workplace intervention strategies and publications on harassment, and labour inspectors began monitoring and enforcing employers’ obligations to address bullying and harassment under the employer’s general duty of care long before the law contained any express provisions to this effect (Velazquez, 2010). This was also true in Australia (Squelch and Guthrie, 2010).

Again, while mental health falls within the scope of OHS legislation in all Australian jurisdictions, as of yet, no Australian state has explicitly required risk assessment of psychosocial hazards such as bullying in their OHS statutes or regulations made under those statutes (Potter et al., 2019, p. 47). Safe Work Australia, charged with developing national work health and safety standards for adoption by the Australian Federal, State and Territory governments, has nonetheless developed extensive guidance material on preventing bullying (Safe Work Australia, 2016, 2018). The Guide constitutes ‘information for persons conducting a business or undertaking (PCBU) on how to manage risks of workplace bullying’ as part of meeting their duties under OHS legislation through systematic approaches to eliminating bullying and internal resolution of bullying issues as they arise (Safe Work Australia. 2016). Even if it is not legally binding, the Guide represents an important and influential resource for management and workers alike (Gunningham and Bluff, 2009) and evidence of what a reasonable person conducting a business or undertaking would do to prevent bullying. It includes information on definitions, prevention, complaints processing and investigations as well as external avenues of recourse through Work Health and Safety Regulators, human rights and anti-discrimination agencies and the Fair Work Commission.

In the EU, lack of technical support and guidance was found to be a major barrier to having in place a procedure to deal with bullying and harassment (EU-OSHA, 2012; EU-OSHA, 2018). Similarly, a study of bullying and harassment prevention practices in 14 countries found that the best way to prevent bullying is to raise awareness through training and anti-bullying policies and codes of conduct (Salin et al., 2018).

This said, in many countries, OHS standards still tend to focus on safety issues rather than health (Stewart et al., 2016, p. 539). The idea that risks to mental health in the workplace must be prevented in the same way as risks to physical health remains a fledgling one, notwithstanding avant-garde examples to the contrary in the OHS legislation of countries such as Norway (Arbeidsmiljploven, 2005, as amended).

Even if general OHS provisions allow for bullying and harassment to be addressed without specific provisions to this effect, the relevant OHS authorities must have the will and the resources to exercise their discretion to implement general provisions with respect to bullying and harassment (Jespersen et al., 2016, p. 24; Leka et al., 2011).

Given that ‘regulation of psychosocial risks may require revising the traditional regulation approach focused on checking specification standards and instead relying on greater use of procedural enforcement’, Jespersen and colleagues conclude that it is crucial that management and employees have a shared understanding of the problem of bullying and harassment (Jespersen et al., 2016, p. 38). This observation echoes recent findings of the European Agency for Health and Safety at Work that after management commitment to OSH in general, the level at which employees were involved in the design and implementation of measures after a risk assessment, and the presence of employee representation were amongst the major drivers of psychosocial risk management (EU-OSHA, 2018).

Mobilizing a Variety of Actors

Although, ultimately, the responsibility for preventing bullying and harassment lies with the employer, generally speaking, the more the legislation involves a variety of actors and institutions, the more effective it can be in curbing bullying and harassment in the workplace (Lippel and Cox, 2018). These actors can be found within the workplace or outside of it. For example, in terms of actors within the workplace, a Québec study underlined the often informal yet crucial role played by union representatives in ‘translating’ the everyday meaning of the right to a work environment free from psychological harassment for unionized workers and supporting them in their attempts to resolve harassment through internal complaints procedures (Cox, 2015). Although litigation of formal complaints of harcèlement moral is available, Belgian legislation calls upon the personne de confiance as well as prevention counsellors to play a central role in supporting targets and in rapidly putting a stop to harassment at work, thus reducing litigation to a minimum (van der Plancke, 2017, 2014). Health and safety delegates in the workplace also have a potentially important role to play in the psychosocial risk management process and liaison with actors outside the workplace such as OHS authorities, including inspectors with the power to issue correction notices, impose fines or even issue orders to stop work (Steinberg, 2017).

In carrying out their duties to resolve issues of bullying and harassment as they arise, in several countries, employers regularly mandate internal as well as external or consultant investigators and mediators to deal with complaints (for Quebec, see Lippel and Cox, 2018; for Australia, see Ballard and Easteal, 2016). Particularly when allegations of bullying involve management, resorting to external consultants can ensure the independence and impartiality of the investigation process. (Hoel and Einarsen, this volume). The role that external investigators play in implementing the law is so significant that a 2012 Report of a Standing Committee on Education and Employment to the House of Representatives of Australia recommended that the federal government explore the possibility of setting up an independent investigation referral service (House of Representatives Standing Committee on Education and Employment, 2012, p. 90). Lawyers who advocate or represent targets also form a part of the network of actors that play a significant role in implementing legislation on bullying and harassment.

On one end of the spectrum lies primary prevention of bullying and harassment; on the other, lie compensation and remedy for targets who have suffered damages when prevention fails. Formal and informal interventions by actors such as union representatives, investigators and mediators, and health and safety delegates fall in an intermediate category between the two, and play a crucial role in stopping bullying and harassment and providing timely assistance to targets. While this intermediate category of intervention is sometimes informal, it is nonetheless a key characteristic of effective legal regulation of bullying and harassment.

Recourse and Remedy

While, as discussed above, several compelling arguments can be made in favour of integrating prevention of bullying and harassment into general OHS legislation (Lerouge, 2017, pp. 385-396), when it comes to providing compensation and remedies to individual targets, recognition of an explicit right to a work environment free from bullying and harassment is extremely valuable. Indeed, the ILO convention calls for recognition of the ‘the right to a world of work free from violence and harassment’.

In the past, an argument against specific recognition of a right to a work environment free from bullying and harassment has come from one school of thought in the United-States that insists that there is no need for ‘status-blind’ protection from harassment at work. According to this school of thought, protection based on status, or in other terms, a ‘protected ground' such as sex or race under anti-discrimination law, is all the protection employees need (Friedman and Whitlan, 2003), a position critiqued by others (Hebert, 2017; O’Rourke and Antioch, 2016; Yamada, this volume'). This approach is tantamount to saying recourse against harassment must remain based on a paradigm of equality, and thus a comparative approach, rather than a recognition of every employee’s fundamental right to dignity at work. It also ignores the fact that while discriminatory animus can be difficult to prove in court, women, people with disabilities and minority men are disproportionately targeted by bullies and harassers at work (Cox and Brodeur, forthcoming; Eurofound, 2015; Fevre et al., 2013; Hebert, 2017, p. 287; Salin and Hoel, 2013; Steinberg, 2017).

Indeed, the serious consequences of bullying and harassment for targets, bystanders, employers and society as a whole are increasingly being recognized and with this, the need to offer targets some form of recourse other than through civil suits (Ballard and Easteal, 2018; EU-OSHA, 2014; Potter etal., 2019). Targets’ right to remedy as well as validation of their experience is an important part of a growing and broader desire for social inclusion (Ballard and Easteal, 2018). The costs associated with recourse in case of bullying and harassment, both in terms of litigation and eventually compensation if a complaint or claim is successful, are important incentives for management to prevent bullying and harassment (Potter et al., 2019; Salin et al., 2018).

Normally, in law, with a right comes a remedy. And even if, in theory, common law or civil law actions may be available to targets seeking redress, the time and costs involved in such civil suits are often prohibitive. A labour or administrative tribunal of some kind is generally a more accessible avenue of recourse for targets seeking to recover lost wages and damages and possibly reinstatement.

In this section, we first examine issues that arise in the design of a law recognizing a right to a work environment free from bullying and harassment, namely definitional issues, available remedies and timeliness. Then, we briefly canvas the potential of workers’ compensation legislation to offer a remedy to targets when bullying and harassment lead to medical incapacity. Finally, we discuss the need to ensure that legislation recognizing a specific right to a work environment free from bullying and harassment does not make the overall legal framework even more complicated and even more difficult for targets to navigate.

Definitional Issues

The definition of bullying or harassment is key to determining the scope and meaning of the right to a work environment free from harassment. We will examine the interface of the notion of bullying and harassment with managerial prerogative, threshold criteria and the role of intent on behalf of the perpetrator.

In order to avoid a purely subjective approach to defining illicit conduct in the workplace, provisions are often introduced to distinguish bullying and harassment from ‘reasonable management action’ (Pinkos Cobb, 2017; Squelch and Guthrie, 2010;). This illustrates a persistent tension in labour law between employees’ right to protection of their health at work and employers’ right to exercise managerial prerogatives (Adam. 2010; Lerouge. 2017, pp. 393-394). At the same time, in an era of major modifications in working conditions due to globalization and technological changes (EU-OSHA, 2018, p. 4), this tension also points to the potential role of legislation on bullying and harassment and other psychosocial hazards in ‘the humanization of work' (Lerouge, 2017, p. 388).

As well as protection of managerial prerogative, a definition of bullying or harassment usually includes some type of threshold test by requiring a certain amount of repetition of the impugned conduct or a certain outcome with respect to risk to health and safety or impact on the employee’s dignity. For example, in the Canadian province of Quebec, the right to a work environment free from psychological harassment has been in force under the Employment Standards Act since 2004. According to the definition of psychological harassment in the law, vexatious conduct must be repeated and affect an employee’s dignity or psychological or physical integrity and also result in a harmful work environment for the employee. Failure to prove any of these elements will lead to rejection of the complaint (Cox and Richard, 2020).

However, in contrast to most jurisdictions where repetition is a requirement that distinguishes bullying and harassment from other illicit behaviour of a discriminatory nature (Pinkos Cobb, 2017), in Quebec, a single serious incidence of vexatious behaviour can constitute harassment. However, in this case, not only must there be an impact on an employee’s dignity or psychological or physical integrity, the behaviour must have ‘a lasting harmful effect’ on the employee (Cox, 2017).

Caselaw in Québec has imposed a ‘reasonable person’ test to assess the vexatious nature of the impugned conduct. In case of poor job performance, absent evidence of bad faith, caselaw recognizes management’s right to intervene, albeit clumsily. If the employer can demonstrate that he took reasonable means to prevent harassment, for example, by adopting a complaints policy, and then again to stop it once it was brought to his attention, the complaint will be dismissed. Although the harasser may be subject to disciplinary action by the employer, he (or she) is not a party to the complaint and cannot be ordered to pay damages to the target (which may raise issues in terms of the therapeutic significance of this recourse for targets). The law applies to harassment by third parties such as clients or employees of other employers, but the extent of the employer’s obligation to prevent harassment is considered in light of his control over the behaviour of the third party (Cox and Richard, 2020; similarly, for Belgium, see van der Plancke, 2017).

Not surprisingly, perhaps, given the considerable evidentiary burden on the complainant, in Quebec, the acceptance rate for complaints for psychological harassment is quite low. Amongst rejected complaints, the reason most often cited in decisions is that the alleged vexatious conduct amounted to reasonable management action, follow'ed by a finding that the facts revealed an interpersonal conflict rather than harassment (Cox, 2017, p. 232). Similarly, in Australia, critics complain of conservative interpretation of the ‘bullied at work’ phrase in the Fair Work Act (Stojanova, 2017).

This said, the impact of Quebec’s legislation on psychological harassment cannot be reduced to the caselaw it has generated, and empirical studies have observed significant changes in workplaces that have occurred upstream of litigation (Cox.

2014) . From a target’s point of view, ideally, the mere threat of litigation creates enough pressure to obtain a response to a report of bullying or settlement of his or her complaint. The same is true in Australia (Stojanova, 2017, p. 294).

The Role of Intent

Remedial Powers

Intentions are hard to prove in court. We note that any requirement in the definition of bullying or harassment with respect to intent on the part of the perpetrator will considerably increase the evidentiary burden on the complainant and thus decrease the chances that a complaint succeed (Adam, 2010; Lippel and Cox, 2018). Most legislation on bullying and harassment does not require proof of intent (Lippel, 2010; Pinkos Cobb, 2017), nor do leading academic definitions (see Einarsen et al., this volume). Ideally, the perpetrator’s intention to cause harm to the target is taken into account when it comes to awarding punitive damages but should not be a definitional requirement.

Targets have often been the subject of poor performance reviews, lost their jobs or been forced to resign (Glambek etal.,

2015) . Reinstatement orders are thus an essential part of a tribunal’s remedial powers. To illustrate, in Quebec, the tribunal hearing a complaint for psychological harassment can order the employer to reinstate the employee or pay an indemnity for loss of employment. It can make an award for lost wages, punitive and moral damages, and order the employer to reimburse expenses incurred by the employee for psychological support. The tribunal can also order the employer to take reasonable action to put a stop to the harassment and if necessary, to modify the employee’s disciplinary record (Cox and Richard 2020).

Timeliness

The timeliness of legal and other responses to bullying and harassment is crucial in order to preserve the possibility of repairing workplace relations, yet rarely addressed in legislation. Australia offers a good example of how the law can help prompt expedient responses to complaints of bullying. The Fair Work Commission must ‘start to deal with' a complaint of bullying by a worker within 14 days (Stewart et al., 2016, p. 703). If the worker is still at work, the Fair Work Commission can issue an order to stop bullying, but not an order to pay damages. Once a worker has left work, and there is no further risk of him or her being bullied, recourse lies with an action for unfair dismissal

Workers' Compensation

Complexity and Fragmentation

or illegal termination of employment (Stewart et al., 2016), a complaint or claim under anti-discrimination or workers’ compensation legislation.

In several countries, where bullying and harassment give rise to incapacity, in addition to disability insurance, workers’ compensation may offer income support to targets. Countries where workers’ compensation claims related to chronic stress are recognized, are often among the first to adopt laws prohibiting bullying and harassment (Lippel, 2017). For example, in Australia, Potter and colleagues evoke ‘a push in awareness and prioritisation of psychological health at work’ with ’major drivers’ being ‘the extreme costs, time and complexities associated with psychological injury compensation claims’ (2019, p. 39).

However, despite the no-fault nature of most work injury compensation regimes, psychological injury compensation claims related to bullying and harassment tend to be quite contentious (Flohimont, 2017; Lippel, 2017). Here again, reluctance to recognize the harm caused by bullying and harassment reflects ambivalence in terms of the line between employers’ right to exercise their managerial prerogatives when it comes to managing conflict at w'ork or defining job duties on one hand, and employees’ right to compensation if bullying or harassment at work makes them ill on the other.

This said, even if, too often, litigation is necessary to assert incapacitated targets’ right to compensation (Flohimont, 2017; Lippel, 2017), when a claim is accepted, the right to salary replacement benefits, medical care and other benefits can be an important part of the target's sense of restorative justice. In many jurisdictions, however, coverage under workers’ compensation precludes the right to damages because of exclusionary provisions that limit employer and co-worker liability (Lippel and Cox, 2020).

In several jurisdictions with specific provisions prohibiting bullying and harassment at work, a subsequent wave of criticism arises because of the complexity of the legal framework and the multiplication of avenues of recourse for targets that do not necessarily translate into better remedy for harm suffered. To illustrate, in Australia, a 2012 Report to the House of Representatives of Australia noted that:

Workers in all Australian jurisdictions are protected against workplace bullying by a variety of existing legislative and regulatory frameworks. These frameworks encompass [O]HS law. criminal law, anti-discrimination law and industrial law as well as rights under common law and workers’ compensation when protections fail.

(House of Representatives Standing Committee on Education and Employment, 2012)

However, the report concluded that:

none of these frameworks provide an ‘all in one’ response to workplace bullying; that is, none provide both universal protection and recourse. Thus, workers are left to navigate the overlapping frameworks, which can be frustrating and confusing for targets of workplace bullying.

Quebec’s legislative framework has come under similar criticism (Cox, 2017) and in France, while the legislative framework is more centralized, recourse against bullying and harassment also appears to be quite convoluted due to the challenge of identifying the appropriate forum for instituting legal action (Lerouge, 2017).

Setting up a single entry point or ‘gateway’ to the various regulatory agencies, better coordination between agencies, and offering cross-agency advice, services and support to targets and employers may mitigate the consequences of complex and fragmented legal recourse (House of Representatives Standing Committee on Education and Employment. 2012; Lippel and Cox, 2018).

Penal and Criminal Legislation

In general, forbidding certain kinds of behaviour in penal and criminal legislation acts as a deterrent for behaviour that is socially unacceptable or reprehensible. In the state of Victoria. Australia, an amendment to the Crimes Act, often referred to as Brodie’s Law, was introduced in 2011. This legislative provision was a response to:

severe and prolonged workplace bullying of a young 19-year-old waitress, Brodie Panlock, who later committed suicide. She was subject to persistent bullying that included abusive comments to the effect that she was worthless. She was also physically covered with chocolate sauce, was spat upon and had fish oil placed in her bag. The bullying persisted for over a year and was exacerbated by the fact that she was infatuated with, and had had a prior intimate relationship with, one of her tormentors.

(O’Rourke and Antioch, 2016, p. 7)

Brodie’s law extends the definition of stalking to include bullying behaviour. Although it does not use the term bullying, in effect, it makes bullying a criminal offence with a sentence of up to 10 years’ imprisonment.

At the time, however, it is important to note that the company was charged under OHS legislation for failing to provide and maintain a safe and healthy working environment, and was convicted and fined AUD$110,000 (O'Rourke and Antioch, 2016, p. 7). The prosecution of Brodie Panlock’s employer and her bullying colleagues offers an example of prosecution under the general duty provisions of OHS legislation and illustrates the fact that most OHS legislation includes penal or even criminal sanctions for breach of its provisions.

Demonstrating the deterrent effect of criminalization, one witness to the House of Representatives of Australia’s committee on workplace bullying testified that:

There was, around the introduction of [Brodie’s Law], a spate of education in corporations across Australia reinforcing the importance and the alignment of genuine systems of management to the achievement of the prevention of bullying.

(House of Representatives Standing Committee on Education and Employment, 2012, p. 181)

Notwithstanding the potential role for penal or criminal prosecutions in stigmatising bullying and harassing behaviour, the high burden of proof (beyond a reasonable doubt) that must be satisfied in penal and criminal prosecutions and the often intangible nature of bullying and harassment means that convictions with regard to bullying behaviour will be hard to come by. Furthermore, criminal prosecutions are brought by the state to punish perpetrators and, in most jurisdictions, offer no remedy to targets per se. However, it is worthy of note that in France, penal legislation underpins charges against the CEO and senior management of France Télécom following a spate of suicides and attempted suicides alleged to be related to management strategies used to encourage workers’ resignations during privatization of a public enterprise. Victims and victims' families were parties represented in these proceedings, and in the judgement rendered on December 20, 2019, the accused were given prison sentences and ordered to pay them damages (Lippel, 2019; Tribunal de grande Instance de Paris (TGI), 2019).

Although indicative of the moral indignation shared by many in light of the difficulties targets encounter in obtaining legal redress, in Australia, calls for a more castigatory approach through further criminalization of bullying and harassment to ‘act as a deterrent to would-be workplace bullies’ (Hanley and O'Rourke, 2016, p. 352) are not necessarily judicious (for other strategies, see Caponecchia and Wyatt, 2009; Lerouge, 2017). They undervalue the potential of dynamic interaction between more readily available compensation for targets and increased incentives for employers to prevent bullying and harassment.

Conclusion

As long as workers’ mental health is included in the scope of OHS legislation, there are compelling arguments for integrating prevention of bullying and harassment into the existing legislative framework for OHS. What’s more, to the extent that regulations, codes of practice or guidance material make it clear that the employer’s general OHS duties cover the psychosocial risk factors that lead to bullying and harassment, explicit provisions are not essential in order for employers to be required to take a systematic approach to eliminate the risk of bullying and harassment.

However, once harassment or bullying has occurred, in terms of timely resolution and remedy for targets, recognition of a specific right to a work environment free from bullying and harassment has undeniable advantages. Women, people with disabilities and minority men are disproportionately targeted by bullies and harassers at work without any clear link to a prohibited ground of discrimination. Recognition of a right to a work environment free from bullying and harassment for all workers is important, and responds to a need broader than the one that is currently filled by anti-discrimination laws.

Indeed, the Gender, Equality and Diversity Branch of the ILO was at the origin of the proposal that workplace violence be the subject of a standard setting process to mark the centenary of the ILO. The impetus for this initiative came out of the women’s movement focusing on violence against women. As a result, emphasis on violence against women, including domestic violence, as well as on gender-based violence, are an integral part of the Convention and Recommendation. The standards are all-encompassing, addressing occupational violence against all workers, mainstreaming the initially gender based approach to this particular debate (Campbell et al., 2018). Law can make a difference in workplaces, and the adoption of international standards conveys a renewed sense of the importance of legal regulation of all forms of occupational violence, including work-related bullying and harassment.

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