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Psychosocial risks at work
All psychosocial risks at work (stress, burn-out, abusive behaviour comprising violence or harassment, etc.) may harm the mental and potentially the physical health of the worker.
If this harm is the consequence of wrongdoing, the worker is entitled to ask for reparation from the perpetrator of the wrongdoing (or the person civilly liable for the perpetrator) at the employment tribunal.
To obtain reparation for the harm, the worker must prove the extent of the wrongdoing, the harm and the causal link between the wrongdoing and the harm.
For the employer, the wrongdoing may involve not having taken the appropriate measures when they were aware of the risk, or for the worker, having been the perpetrator of abusive behaviour.
This principle applies to all psychosocial risks. However, there are specific additional rules for abusive behaviour involving violence and harassment at work.
Workers and employers can open legal proceedings, as can third parties who believe they are the victim of abusive behaviour by a worker in a company with whom they have come into contact while performing their work.
A number of organisations can also launch legal proceedings, with the agreement of the person in question:
- organisations that represent workers and employers, for example the CSC, the FGTB, the CGSLB, the FEB, or AGORIA;
- representative trade unions in the public sector, for example the CGSP, the CSC-Services publics, or the SLFP;
- a number of non-profit associations and foundations, provided that their statutory purpose is to defend the interests of victims of violence or moral or sexual harassment;
- the Interfederal Centre for Equal Opportunities and Opposition to Racism and Discrimination (Unia) if the violence or harassment is caused by a discrimination factor such as ethnic origin, religion or disability;
- The Institute for the Equality of Women and Men for acts of sexual harassment or if the violence or harassment is linked to the person's gender.
Advice by the Prevention Advisor for psychosocial aspects
To estimate the chances of success of court action, the worker who submitted the formal request for psychosocial intervention due to acts of violence or harassment at work, or the person under suspicion in this request, can ask the employer for a copy of the full advice of the Prevention Advisor, mentioning that they plan to take legal action.
Nature of the legal action
In addition to the request for damages, the applicant can submit a request to the employment tribunal, so that the judge:
- orders the perpetrator to cease the acts under threat of legal sanctions in the event of non-compliance. This is called "action for an injunction";
- orders the employer to take measures to obtain compliance with the legislation (structural preventive measures, measures to end the abusive behaviour).
These requests are processed under an accelerated procedure (the procedure deadlines are shorter than in a normal procedure).
If a worker directly submits a case to the employment tribunal without going through the internal procedure (where this exists and can be legally applied), the judge can order this worker to use the internal procedure first.
The legal proceedings are then suspended until the employer issues their decision on the measures they have decided to take, at the latest two months after receiving the advice of the Prevention Advisor for psychosocial aspects.
Proof of the facts
The applicant will have to prove the facts that will allow the judge to presume or deduce the existence of violence, or moral or sexual harassment at work.
Simply alleging that a worker has experienced harassment at work is not enough; it is necessary to specify the time and place of the acts and identify the persons accurately.
For example, it is not enough for the applicant to allege to the judge that their line manager creates terror and tries to isolate them from their colleagues. They must describe how their line manager creates terror, which colleague they have been prohibited from talking to and when this occurred.
The applicant therefore has to prove the acts or provide prima facie evidence of these acts.
Likewise, if the applicant wants to prove these acts via testimonies, the judge is entitled to refuse to hear witnesses if they consider that the circumstances, time or place of the acts is not sufficiently precise.
Once this proof has been provided or this presumption established, it is the responsibility of the defendant to prove through other facts that there has not been any violence or harassment at work.
If the judge has established the existence of facts that allow them to presume the existence of violence or harassment at work, the victim is entitled to compensation for their material and non-material damage. The victim therefore has a choice:
- they either decide to request payment for the real amount of the damage. In this event, they must prove the scope of the damage and the link between the abusive behaviour and the damage.
- or they decide to request the fixed-rate compensation as specified by law. In this event, they do not need to prove these two elements.
Who can ask for the fixed compensation?
Any person recognised as a victim of violence or moral or sexual harassment at work can receive the fixed-rate compensation.
This may be:
- a worker;
- an employer;
- a third party who has been a victim of a worker's behaviour during the performance of their work.
For example, a worker in an external company who has been a victim of the behaviour of a worker in the company for which they are performing their duties or the self-employed victim of the behaviour of a worker in the company for which they are providing services.
However, a person who has suffered abusive behaviour in their private life cannot claim this fixed-rate compensation, as there is no longer a link with their work. For example, someone who has suffered harassment by a supermarket cashier while in a private capacity cannot request the fixed-rate compensation.
Who has to pay the fixed-rate compensation?
The perpetrator of the acts must pay the compensation, although the employer may initially be required to pay it as they are civilly liable for the perpetrator.
The employer can then claim reimbursement from the worker at fault if their behaviour can be considered wilful misconduct (intentional) or gross misconduct (inexcusable).
Amount of the compensation
In principle, this compensation amounts to three months' gross salary for the victim.
It may exceptionally be six months' gross salary in three cases:
- the behaviour is linked to discrimination;
- the perpetrator is in a relationship of authority over the victim;
- due to the gravity of the acts.
The gross monthly salary of a self-employed worker is calculated by taking into account the taxable gross professional income stated on the most recent personal tax statements, divided by 12.
The gross monthly salary considered for the calculation cannot exceed the salary in Article 39 of the Law of 10 April 1971 on occupational accidents (which is €3,694.19 per month for 2019).
Application in time
The fixed-rate compensation can be claimed for situations of violence or harassment that:
- began after 1 September 2014;
- began before 1 September 2014 but continued afterwards.
- Firstly, with the prevention advisor of the internal and/or external service for prevention and protection at work.
- Secondly, with the competent regional directorate for Supervision of Well-being at Work.
- Questions on the interpretation of the legislation: in writing to the Directorate-General for Humanisation of Labour.