Author: Lawyer Enrico Germano
The data from the State Secretariat for Economic Affairs (SECO) dated 7 July 2022 show that for the month of June 2022, there were (only) 92,511 registered unemployed persons in Switzerland, the unemployment rate dropping from 2.1% for the month of May 2022 to 2.0% for the month of June 2022. Even more indicative and comforting is that compared to the same month in 2021, the number of unemployed persons decreased by 39,310, or 29.8%.1
By way of comparison, the average unemployment rate in the European Union was 6.8% in April 2022, according to the Statistical Office of the European Union (EUROSTAT)2, while in Italy the unemployment rate in March 2022 stood at 8.3%, returning to 2010 levels and with the youth unemployment rate rising to 24.5%.3 In May 2022, again in Italy, the unemployment rate dropped slightly to 8.1 % and to 20.5 %4 among young people. In Germany, the unemployment rate for June 2022 was 5.3% and in France, the rate for the first quarter of 2022 was 7.3%.5
These figures should not be misleading. Although the labour market in Switzerland certainly appears to be flourishing, perhaps the most flourishing in Europe, unfortunately, various forms of harassment in the workplace also emerge in our latitudes.
“Bullying in the workplace (also referred to as psychological terror or harassment behaviour) refers to certain behaviour – individual or group – systematically directed against a specific person with the aim and/or effect of removing him/her from the company”.6 SECO (State Secretariat for Economic Affairs) has divided the so-called “mobbing actions” into five categories:
- “assaults with impact on communication: not allowing the person concerned to express him/herself, interrupting him/her, shouting at him/her, not providing information;
- assaults with impact on social relations: refusing any kind of contact with the person concerned, ignoring him/her, marginalising him/her, isolating him/her;
- aggression impacting on reputation: ridiculing, spreading unfounded rumours, mocking, offending, making derogatory comments about the person concerned;
- aggression with an impact on the professional and private situation: attributing disqualifying and humiliating tasks to the person concerned, criticising him/her unfairly, taking away important tasks;
- aggression with an impact on health: threats of physical violence, assault, sexual harassment”.7
Switzerland has introduced a number of legal regulations to counteract such often insidious and not easily provable forms of harassment, including the Labour Act of 13th March 1964 (LL) and Ordinance 3 concerning the Labour Act of 18th August 1993, also known as the Health Protection Ordinance (OLL 3). Other legal bases can be found on Federal Act on the Amendment of the Swiss Civil Code (Part Five: The Code of Obligations) of 30th March 2022 with provisions concerning the liability of employers (Art. 55), the liability for associates (art. 101), Compliance with general directives and instructions (Art. 321d), the Protection of the employee’s personality rights (Art. 328), as well as the Swiss Criminal Code of 21 December 1937, with provisions concerning Common assault (Art. 123), Defamation (Art. 173), Wilful Defamation (Art. 174), Insult (Art. 177), Threatening behaviour (art. 180), Coercion (art. 181) and Sexual harassment (Art. 198).
t is difficult to establish statistics and case studies, but in 2015, around 6.8% of Swiss people claimed to have experienced bullying in the last 12 months.8 To assume today that one in ten Swiss (but also one EU worker) is the target of bullying is perhaps not far from reality.
A recent ruling by the Tribunal des Prud’hommes, which intervenes in disputes arising from an employment contract under private law9, of the Court of Justice of the Canton of Geneva of 9 May 2022,10 had dealt with a mobbing/bullying issue and had considered in this specific case that the employer had violated the employee’s personality rights by preventing him from being able to perform the function for which he had been hired and by not taking the necessary measures to put an end to this impossibility. In that case, the Court had awarded the employee the maximum compensation permitted by law, in accordance with Art. 336a para. 2, Code of Obligations corresponding to six months’ salary to be paid by the employer who had wrongfully terminated the employment relationship. The Tribunal des Prud’hommes itself had confirmed how difficult mobbing/bullying was to prove and had relied on a plurality of converging evidences to prove it (faisceau d’indices convergents).
10L’arrêt de la Chambre des Prud’hommes de la Cour de Justice du Canton de Genève CAPH/67/2022 du 09.05.2022, consid. 4 et ss