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The aim of the criminal proceedings is to ensure that the correctional court imposes criminal sanctions on the employer and/or a member of the line management or the perpetrator of the violence or harassment at work.
Violations of the well-being legislation can lead to criminal sanctions - criminal fines and even imprisonment (for the most serious offences) - as defined in the Social Criminal Code.
- In virtue of Article 119 of the Social Criminal Code, a person will be punished if they come into contact with workers during the execution of their work (workers or third parties) and commit an act of violence, or moral or sexual harassment at work.
The criminal sanction involves:
- a six-month to three-year prison sentence;
- a fine of €4,800 to €48,000 (including additional premiums);
- or both.
If there is no legal sanction, an administrative fine of €2,400 to €24,000 (including additional premiums) may also be imposed.
- In virtue of Article 122/1, 2°, e) of the Social Criminal Code, an employer will be punished if they do not take the appropriate measures to end the harm done to a worker who has submitted a formal request for psychosocial intervention due to acts of violence or harassment.
The criminal sanction involves:
- a fine of €800 to €8,000 (including additional premiums);
- an administrative fine of €400 to €4,000 (including additional premiums).
Furthermore, the perpetrator may be prosecuted on the basis of Article 442bis of the Criminal Code, which makes harassment punishable (in the private sphere or the employment sphere).
The aim of the criminal procedure is therefore very different from that of the internal company procedure or the civil procedure.
Psychosocial risks excluding violence and harassment
Only the worker (including members of line management) can launch this procedure against their employer or a member of their line management who has not respected their obligations under the Well-being at Work Act.
The following could be considered as violations, for example:
- the fact that an employer has not taken the appropriate preventive measures to limit the harm to a worker experiencing burn-out following the submission of a formal request for psychosocial intervention.
- the fact that a member of line management has not taken any steps to address a psychosocial issue of which they are aware.
Abusive behaviour comprising violence or harassment at work
This criminal procedure can be launched against an employer or a member of the line management who has not respected their obligations under the Well-being at Work Act, as well as against the perpetrator of the abusive behaviour (employer, member of the line management, worker, third party).
The court action to examine the culpability of the accused person may be initiated in a variety of ways:
- the person may submit a complaint to the police services or the labour inspectorate. However, the public action will not necessarily be launched, as it is the responsibility of the auditor (the public ministry) to freely assess the opportunity to pursue the perpetrator, the employer or the member of line management in the correctional court. For this purpose, the auditor can ask the Supervision of Well-being at Work inspection service or the police services to carry out certain duties. They may decide to close the dossier with no further action due to inopportuneness or because the charges are insufficient.
- The inspectorate may be contacted by the Supervision of Well-being at Work inspection service which has produced a report declaring a violation.
- The person may submit a complaint to the instructing judge with a claim for criminal indemnification.
The judge will open an investigation (including by asking the Supervision of Well-being at Work inspection service or the police services to perform certain duties) and report to the Court Chambers, which will decide whether to dismiss the case or to refer it to the correctional court.
In this case, the instructing judge may ask the complainant to pay the court’s registry the amount presumed to be necessary for the proceedings, before any action is taken. The amounts paid by the complainant will be reimbursed if the defendant is convicted. If the correctional court acquits the defendant, the complainant is required to pay all the legal costs.
The complaint to the courts only protects the worker from reprisals in certain cases.
- 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.