Workplace Harassment (Mobbing): When It Is a Crime

Workplace harassment, known as "mobbing", is typified as a crime in the Criminal Code. But not every conflict, poor relationship or unfavorable business decision is criminal mobbing. This guide explains when workplace harassment constitutes an offense under Art. 173.1 CP and when it belongs to the labor or administrative sphere.

Workplace Harassment as a Crime

Article 173.1 of the Criminal Code, within the offenses against moral integrity, punishes those who, within any labor or civil-service relationship and abusing their position of superiority, repeatedly carry out against another hostile or humiliating acts that, without amounting to degrading treatment, constitute serious harassment of the victim. The penalty is six months to two years in prison. The protected legal interest is the person's moral integrity.

The Elements of the Offense

For workplace harassment to be a crime, several elements must concur:

• Labor or civil-service relationship. The conduct occurs within an employment relationship, whether private or in the public service.
• Abuse of a position of superiority. The perpetrator holds a position of superiority over the victim and makes use of it.
• Repetition. An isolated incident is not enough; repeated conduct over time is required.
• Gravity. The set of acts must reach the level of serious harassment.

Not Every Workplace Conflict Is Mobbing

This is the key point that causes most confusion. A poor relationship between colleagues, an unfavorable business decision —a change of duties, a disciplinary sanction or a negative appraisal— or the exercise of management powers do not, in themselves, constitute criminal workplace harassment. The offense of Art. 173.1 CP requires repeated hostility or humiliation of sufficient gravity. Situations that do not reach that threshold may be addressed in the labor jurisdiction or before the Labor Inspectorate, but not through the criminal route.

Degrading Treatment and Housing Harassment

Article 173.1 CP brings together three modalities punished with the same penalty of six months to two years in prison: degrading treatment (inflicting treatment that seriously undermines moral integrity), the workplace harassment described and housing harassment (repeated hostile or humiliating acts aimed at preventing the lawful enjoyment of a home). Where workplace harassment reaches, by its intensity, the gravity of degrading treatment, the first modality applies.

Difference from Sexual Harassment

Harassment of a sexual nature is not punished under Art. 173.1 CP, but has its own criminal type (Art. 184 CP). The workplace harassment of Art. 173.1 CP protects moral integrity against repeated non-sexual harassment.

Criminal, Labor and Administrative Routes

Several routes coexist when facing a situation of workplace harassment. The labor jurisdiction and the Labor Inspectorate channel a large part of the cases. The criminal route is reserved for conduct that reaches the gravity required by Art. 173.1 CP. In defending against an accusation of workplace harassment, it is essential to reconstruct the context and establish that the questioned decisions responded to objective organizational reasons and to the lawful exercise of management powers.