Harassment: the employer who does not stop a harmful act is liable (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, January 2022)

30 January 2022

In its ruling no. 35061 of 17 November 2021, the Court of Cassation ruled on the employer’s liability if an employee harasses a colleague.

The facts of the case saw the Court of Appeal of Rome reform the Court of Rome ruling and uphold the claim brought by an employee of the Ministry of Foreign Affairs and International Cooperation working at the Italian Cultural Institute in Chicago, seeking compensation for damages for harassment against the employer and the Institute director.

The local Court disagreed with the first ruling’s assessment, where the evidence of harassment conduct did not emerge from witness statements.

There was direct testimony about the harassment suffered by the appellant employee, that the director asked her “to make continuous corrections of the texts she had drafted and obliged her to wait for a long time behind the door of her office. She often imposed tasks taking many hours of overtime and criticised her work with expressions such as ‘wretch’, ‘idiot’. She also said that [the employee’s] work ‘sucked’ in front of her colleagues and assigned her the task of opening the office, replacing absent colleagues and carry out disqualifying tasks. The director presented [the employee] externally as an ‘assistant’ and did not use her superior qualification (‘consular agent’).”

These circumstances were confirmed by further witnesses, which added that the director denied the employee the required leave, even though she had accumulated many overtime hours, and assigned interns to tasks for which she was responsible, often using her as a switchboard operator.

The Supreme Court noted that the conduct described was “a set of repeated conduct clearly aimed at belittling and downgrading the employee personality outside and inside the working environment, make it intolerable and causing her to be dismissed.”

Based on these circumstances, the Court of Appeal held that the Ministry, the employer, was liable for the harassment perpetrated against the employee and that this liability applied to the Institute director, as the author of the conduct.

In confirming the local Court findings, the court-appointed expert confirmed that the employer’s conduct had caused the employee biological damage, consisting of “adjustment disorder, in a person with dependent personality disorder with avoidance traits”, resulting in permanent disability of four percent and temporary partial disability of 25 per cent for 60 days.

In the case in question, the appeal Court positively verified the violation of contractual obligations and the employee’s personal rights of constitutional importance. This included the right to dignity in the workplace (Article 2 of the Italian Constitution) and the right to health (Article 32 of the Italian Constitution). It was confirmed that the Institute director conduct was intentional, which is necessary for the harassment definition.

In the second instance proceedings, the existence of a series of repeated conduct “clearly aimed at belittling and downgrading the employee personality outside and inside the working environment, making it intolerable and cause her dismissal”, was confirmed.

In her appeal against the second instance ruling, the director claimed that the appeal Court “violated the case-law principles on harassment, by listing a series of behaviours committed against the employee without verifying the offence’s subjective profile or that they were accompanied by an intention to marginalise, harass or harm the employee.”

However, for the Supreme Court, this appeal was inadmissible. It ignored the positive finding, contained in the ruling under appeal, of the intentional nature of the director’s conduct aimed at “belittling and downgrading” the employee personality and “making the working environment intolerable for her.”

In her appeal, the director argued that in this case, the aetiological link between the conduct and the biological damage had not been proved. It was stated that the court-appointed expert said that the employee’s personality was characterised by a “dependent” disorder with “avoidance” traits, which had contributed to “making her structurally fragile and vulnerable to stressful events. In its conclusions it stated that the work event was a contributing factor along with personality characteristics.”

This argument was considered unfounded. According to case law, “in case of concurrence between human causality and natural contributing factor, the person responsible for the offence is liable for everything.” “A comparison of the degree of aetiological incidence of several causes can be established only among a plurality of culpable human behaviours.”

The Supreme Court pointed out that when an injured person is more vulnerable than others of the same age and sex due to their subjective condition, “this circumstance does not affect either the causal relationship, or the culpability nor the payment of damages.”

The aetiological relationship between the harassment and the injury to the right to health is verified even when the conduct constitutes only a contributing cause and has operated on a pre-existing psychological background, under art. 41 of the Italian criminal code, which states that “the combination of pre-existing or simultaneous or supervening causes […] does not exclude the causal relationship between the action or omission and the event.”

Finally, the employer’s cross-appeal was rejected. The Court of Cassation pointed out that case law has repeatedly determined how a series of persecutory behaviours with vexatious intentions constituting harassment can be directly perpetrated by the employer or one of its representatives or by other employees, subject to its management power.  In this case, “the fact that the harassment originated from another employee who is in a position of hierarchical superiority over the victim is not sufficient to exclude the employer’s liability where it remained culpably inactive in removing the harmful act.”

Source: Sintesi

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