Who will protect a “black sheep” from harassment at work?

While bullying is being discussed lately, and even the corresponding bill on counteraction to bullying (No. 8584) has already passed its first reading in Verkhovna Rada, they do not take mobbing seriously. Meanwhile, this shameful phenomenon — the persecution of an objectionable employee at work for some reason — is common in many work teams.

Truly, it should be said that the draft law aimed at combating mobbing, which is proposed to make certain changes to the labor legislation and a number of other laws, also exists. It was registered in the Parliament in 2017. However, the document was too raw, so this spring it was sent for revision.

Since then, the status of the bill No.7005 in the Parliament has not changed, while sociologists say that at least 50% of Ukrainian workers deal with psychological abuse at work. Therefore, while the deputies will return to the consideration of this problem, DUMKA decided to find out how a person, who faces mobbing at work can protect oneself.

The fact that the bill needs to be improved can be seen with the naked eye, you should go to the Verkhovna Rada website and open this document. The main question is how a person can prove that mobbing is applying against him or her ‒ its authors have not even mentioned. Meanwhile, Article 2 of the Labor Code enshrines the right to healthy and safe working conditions as one of the basic labor rights of workers. At the same time, at least in the Law “On the Principles of Preventing and Combating Discrimination in Ukraine” there is no concept of mobbing, however, there is a concept of “infringement” in it. This is “undesirable behavior towards a person and/or group of people, the purpose or effect of which is the humiliation of a human dignity on certain grounds or the creation of a tense, hostile, offensive or derogatory atmosphere towards that person or group”. In fact, we are talking about the very essence of mobbing as one of the manifestations of discrimination. Moreover, according to the Main Scientific and Expert Department of the Verkhovna Rada, it is this definition that is more acceptable “for the use in labor legislation, taking into account its modernization with the requirements of legal regulation of labor relations”.

Classics of the genre

At the legislative level, a ban on mobbing and its manifestations was introduced in Denmark, Sweden (where was adopted a law in 1993, aimed at combating mobbing at the workplace), in Norway, Germany, Poland, Italy, the United States, Great Britain, Quebec, and France. The term “mobbing”, which comes from the English verb “to mob”, means collective psychological terror, harassing an employee by a leader, colleagues or even subordinates.

The phenomenon arose even when primitive people began to gather in the first groups, but they only began to talk seriously about it in the last century, highlighting it as a separate psychological problem. Now, according to Western scientists, more than 20% of workers suffer from mobbing, and a quarter of them are beginners. In Ukraine, sociologists argue, half of the employees have dealt with mobbing, more than 30% faced psychological terror from the management, almost 15% from colleagues and 5% themselves harassed subordinates or peers, equal in status.

I was recently told an unpleasant story from my familiar’s own life. A woman worked in one of the publications as a deputy head.

She made a remark on the chief accountant’s smoking in the flight of stairs. Neither the argument that it is forbidden by the current legislation nor the fact that those, who do not smoke suffer from cigarette smoke has given the results. At first glance, it can be expected that the head will intervene and dot the “i”. Instead, he called his deputy and offered… resigning herself. When the woman refused, arguing that there had been no comments for a dozen years of performing her professional duties, the head began to create conditions to force the person to quit.

A special “highlight” was the appearance of the register, which was widely used during the Soviet era. It ordered the journalists to sign, putting down the time when they come and when they leave work. To say that people were surprised and outraged is to say nothing. When it didn’t work either, the manager started a pseudo-organization of the editorial office, reducing the position of the person, who offended the chief accountant. It’s unambiguous to figure out why the head — with the obvious facts —took the side of the chief accountant, is not the task of this material, but here, the classic case of mobbing took place.

A person, who is being mobbed, as a rule, deals with moral persecution, unfair criticism, insult, humiliation, ignoring, excluding from social life, and gossiping about him or her. If the persecution occurs with the participation or with the “light hand” of the leadership, then it aims to get rid of the “extra” or “inconvenient”, as in the example above, workers, who have their own clear position and are not afraid to defend it. And you do not need to be a health professional to understand that such actions usually lead to nervous breakdowns, loss of concentration and poor health in general, and also heart attacks and strokes. American physicians, who have investigated the problem, say that very often people, who were psychologically mobbed at work, then get a diagnosis of “post-traumatic syndrome”.

Horizontal and vertical mobbing ‒ that is, bossing

“Mobbing and bullying are phenomena of social life that have much in common and are completely different,” Yaroslav Zhuravel, Acting Dean of the Law Faculty of the Academy of Labor, Social Relations and Tourism, explains. “The first distinguishing feature is the sphere of psychological pressure: mobbing is carried out by an employee in a workgroup, and bullying is inherent to participants in non-working relationships.” The scientist is convinced that mobbing is found in almost all workgroups. “This phenomenon has always been and most likely will remain in separate forms after making amendments to the legislation on countering mobbing and bullying. To eradicate it completely is incredibly difficult and, probably, impossible at the present stage of development of civil society in Ukraine,” he said.

Mobbing can be horizontal and vertical, which is also called bossing. Horizontal is observed between employees of the same level. Vertical is associated with the unlawful psychological pressure of the head or his submission to subordinates. It can manifest itself in real life in different ways. In universities, for example, it occurs when a manager reduces the workload to a teacher, whom, for some reason, he does not like or with whom he has a tense relationship. Now, the lawyer believes, the Labor Code is written out in such a way that a trade union organization can and should protect a worker, who is being mobbed by a leader. “The current labor legislation,” the Acting Dean of the Faculty of Law urges, “Widely regulates this issue, but the problem does not disappear. That is why the idea arose to try to envisage administrative responsibility for mobbing at the legislative level. It is reflected in Bill No 7005. Its authors attempted to formulate a definition of the notion of “mobbing”, proposing to understand it as “a form of psychological violence, which consists in a long-term systematic harassment of an employee in a team, sexual harassment, psychological pressure on him for further dismissal”. That is, the person being mobbed is an employee of the team. The legislator proposes to clearly see mobbing as a negative phenomenon in labor relations.”

There is little hope for trade unions

One of the cases that vividly characterizes all the facets of mobbing, occurred in one of the villages of Kyiv region. A participant in the election race, let’s say, citizen A., won the election of a rural head. And according to the legislation of Ukraine on local elections, he comes into his authority only from the moment of the announcement of the election results in the first after-election meeting of the village council. However, the deputies of the village council, who “co-worked well” with his predecessor, are in opposition to the newly elected head and found a mechanism for not letting the newcomer to work: they simply didn’t meet at the village council meetings ‒ someone suddenly “got sick”, someone “was dispatched” etc.

On the one hand, the grounds for such a failure to attend the board meeting are valid, on the flip side, the newly elected chairman remains unemployed for a long time, and his predecessor continues to fulfil the authority of the village head. “Can it be considered as mobbing? Actually, yes. Was this a moral and psychological insult for a person? Of course,” Yaroslav Zhuravel comments on the situation. “The man had the legal right to work and the duty to carry out his election program before the territorial community. Therefore, the future law should contain real mechanisms to combat such forms of labor discrimination.”

One of the most effective ways to protect workers from labor conflicts in a team, in the opinion of a lawyer, should be a competent trade union body. “However, it has happened historically that the primary trade union bodies in enterprises, institutions and organizations are not always formed from workers, who are knowledgeable in labor legislation, who do not have the ability to properly protect the working group,” he explains. “This state of affairs often leads to the loss of the trust of the workforce, and later on the loss of their independence.”

Preventers for the mobbers

Trade unions, to put it mildly, usually have no sense of real life, so an alternative mechanism is needed to protect people from harassment at work. Moreover, it should contain, first of all, the ability to register such manifestations of mobbing. According to Yaroslav Zhuravel, this can be implemented in several ways. “Today everyone has the technical possibility of fixing what is happening around us. Going to a meeting with an unfriendly colleague, we are aware of the high level of probability of the next attacks. In addition, each of us has the opportunity to record a conversation with such a person on his gadget. This is a simple, clear and accessible to everyone method of self-defense. However, Ukrainian court proceedings show that the court does not always take into account such an evidence for various reasons.

As an additional way to protect an employee from mobbing, one can consider the European experience of officially installed video/audio recording in offices. I agree that the cost of such monitoring systems, the need to preserve a large volume of records and the corresponding maintenance make one think about the feasibility of such an investment of the employer, but the scales should be on the side of well-coordinated efficient work of a healthy workforce. And if significant one-time spending leads to this result, then this should be done,” the expert believes.

If we clearly define the forms of manifestation and elements of mobbing at the legislative level, establish detailed requirements for evidence and proving the facts of unlawful acts, but do not establish an adequate punishment for the perpetrators, then all good intentions to protect the employee from psychological pressure in the team will come to nought. Now the legislator proposes “for systematic violation of the rights of an employee through the use of psychological violence and other mobbing elements” to establish criminal liability under Article 172 of the Criminal Code, where sanctions provide for a fine of up to 50 non-taxable minimum incomes of citizens or deprivation of the right to occupy certain positions or engage in certain activities for up to three years, or correctional works for up to two years.

The sanction of the article is rather severe and sufficient for the punishment of the offender. However, it is too harsh if it is assumed that an innocent person, who is accused by the working team in mobbing. The legislator does not propose administrative liability for mobbing but provides such for bullying. “It is necessary to unify, as far as possible, legislative approaches to counteract these two negative phenomena,” the expert believes.

The draft law No. 7005, which was recently discussed at the “roundtable” in the Verkhovna Rada, also proposes to add to the article 173 of the Labor Code the words “in the case of damage to the health of an employee, caused by mobbing, the damage shall be compensated for the expenses incurred for the treatment and monetary compensation of moral damage, which corresponds to the amount of salary of the employee during his stay in the hospital”. Considering that in difficult situations, rehabilitation may be required, it would be necessary to envisage the costs of it.

To document, to document and to document once more

While the authors of the bill, other deputies, scientists and the public are discussing what the bill should be like, the harassment of a “black sheep” in offices and enterprises continues. Moreover, a person can be “appointed” to the “position” of a “black sheep” almost with the wave of the hand. Therefore, it is very important to understand whether a person can somehow defend oneself today and how to do it. “If we act within the law, then we need to evaluate the actions of our employees from the point of view of the law,” the lawyer Anna Malyar explains in a commentary to DUMKA. “What does the law protect? It protects human life and health. It protects the business reputation. If a person, for example, suffered or one’s secret has been disclosed, regarding the diagnosis or an adopted child, and this was done intentionally, this is actually mobbing and you can talk about bringing to justice people, who did it. In addition, the Civil Code provides liability for moral harm and damage to business reputation. If a person is able to prove that such damage has been done, one can also apply to the court and collect compensation in one’s favor.”

However, here again, we will deal with the gathering of evidence that will help you to prove that you were bullied at work. How to do it? “To do this, you need to record everything that happens, information carriers, everyone has all kinds of technical devices today,” the human rights activist joins the opinion of her colleague. “If this happens in some paper versions, for example, a complaint or a message of some information, it can also be recorded. And in such situations, you need to seek help from a lawyer, who will explain exactly what and how to fix, because in each case it is individual. In fact, each situation is unique and it is impossible to give one recipe for all cases.”

According to the expert, an important role in the battle against mobbing belongs to the head (but this is the case if we have horizontal, not vertical mobbing when the head is an initiator). “The key advice to the leaders of work teams, who should first of all be interested in ensuring that the psychological atmosphere in the team is normal — even before mobbing develops into a violation of someone’s rights or even a crime, prevent it, using all possible measures,” explains Anna Malyar. “Today the market offers a lot of different trainings, appeal to mediators, work with psychologists ‒ that is, so many different ways that help to establish a microclimate in a team, a normal moral environment for work. And, I repeat, first of all, a head, not subordinates, should pay attention to this. But subordinates, if we are not talking about the violation of the norms of the law, must report this to the manager and jointly decide how to protect the team from this situation.”

If, as in one of the cases, cited in the material, a head presses personally and forces his subordinate to quit, because for some reason he does not like him or her, but this does not in any way concern the business qualities of the subordinate, one should use all the opportunities offered by the current labor law. “Now the law does not interfere with human relations, not only colleagues, but also friendships. However, there are such key rights that are protected in labor relations,” the lawyer notes. “Although we still have the Soviet labor code, which is very imperfect, but in the meantime, if a manager goes beyond his authority and forces a person to quit, then there are no grounds on the Labor Code for complying with any personal reasons. Therefore, a person can contact a lawyer, fix all these things and then go to court.

As for the possibilities of fighting mobbing, I will say this: labor legislation requires improvement in the sense of greater protection of the rights of workers as a whole and from particular persecution of heads, when a person, in fact, can do nothing. This problem actually exists; it needs to be tackled. At the same time, we can look for various mechanisms of protection against mobbing, but we need to protect a person from harassment at work because the current legislation protects the employer more.”

The roots of psychological terror are often in narcissism

Psychologists confirm that mobbing is found in almost all groups. “Moreover, this phenomenon is not uncommon among highly intelligent people,” psychologist Viktoriya Gladkykh explains to DUMKA. “They don’t like to talk about it out loud, but often we have a classic situation when the team is female and a boss is a man, who created a harem around himself. And the harem is in the truest sense of the word since women pass through his bed. And suddenly there is one that does not want to play according to the rules, generally accepted in this team. Do you think that women are glad that a colleague is able to say no? On the contrary, women, who have come to terms with this state of affairs, will persecute her from all sides.”

At the heart of the phenomenon of mobbing, there are a lot of different reasons and psychological aspects. “Most often it is provoked by envy, competition, a sense of superiority. A sense of superiority is often based on the pathology of narcissism. A narcissus is a person, who praises himself to compensate for what he lacks. Plus, the desire to dominate and suppress is added, the expert notes. “It’s extremely difficult to protect oneself against harassment, especially in the absence of any legislative levers.”

A team is a too complex organism that is controlled by many processes. There are leaders, who, instead of solving real production problems at work, surround themselves with a group of close associates, who are ready to fulfil all their whims. It is more likely not about deputies, but about some favourites. “And if suddenly any employee falls into a disgrace to such a leader, or a woman comes to work, who seems cleverer, smarter, better, is fraught with some kind of threat, even if contrived, a whole bunch of people are attacking this person,” Viktoriya Gladkykh says. “In the very process of persecution, there are a lot of subtleties; the whole nature of human, all its imperfections, creeps into the world, therefore, it is very difficult to defend oneself from this.”

There are special models of preventive behavior ‒ to be successful, self-confident, all the time trying to add a landing spot, so to speak, and envisage the actions of colleagues or, on the contrary, not to become too active. That is, to count all these processes in advance. But they either work for a short time or do not work at all, because it is impossible to count everything. The team usually builds a very complex hierarchy and there are always people, who are “under the boss” or who are “with the leader”. And if they understand that the general tendency is to destroy someone, then they will nibble the ground, using a thousand and one ways, starting from the banal ones like “you are dressed not properly” and also more sophisticated reasons and nitpicking to perform job duties.”

The problem cannot be solved without changing the culture of education

The psychologist notes that this is a very difficult process and here we should talk about the primary culture of education. “We lack a culture of educating a person,” says Viktoriya Gladkykh. “We can only talk about raising a certain socially adapted person, but it’s not a person with human factors. In the new team, two types of adaptation are possible: with a positive sign and with a negative sign. But in our society, adaptation with a negative sign prevails. The difference between them is enormous: adaptation with a positive sign is when the team accepts me, supports me and allows me to show the best qualities. Adaptation with a negative sign is when I come and rearrange according to the team. And even when the parameters of this team are much lower than mine. But I am forced to reorganize so that they do not push me out, so that the flock accepts. That is, if you renounce higher parameters of your level of consciousness, to be with this flock ‒ an order lower in terms of development, worse and more aggressive.”

And if, according to the psychologist, you can still somehow try to fight the horizontal mobbing, then in the case of the vertical one, when the bullying is headed ‒ through his henchmen, or personally ‒ the head, the struggle is doomed to failure, because the boss will find how to get rid of an unwanted employee. Sometimes they use this method, driving out people from work, in order not to reduce positions officially and not to pay people their severance pay. “If a person knows how to feel critical moments, one can try to get ahead of this process, but for that one need to be very strong,” Viktoriya Gladkykh says. “And to feel this, one needs to understand all the trends in the team, what and how is happening, who plays for whom. And indeed to realize how much one is able to withstand it and how much one needs it in general.”

The psychologist explains that exactly who is being mobbed depends first of all on the cause of the harassment. People may be disliked because of their religious principles. And even vegetarians: they say, we all eat meat, and do you want to live longer, or what? It is important that a person enters the team and how well developed is her social immunity. That is, if a strong personality with a pronounced inner core is very difficult to influence psychologically because a person reacts to everything neutral, a weak person, on the contrary, is quite easy to break and humiliate. And the more subtle a person reacts, the more vulnerable one is, the more a flock ‒ contemplating this psychological blood ‒ begins to put pressure on him or her. For example, it is difficult for young girls, who were born and raised in the villages, and then come to the cities and work there in offices.

“Such a girl may differ from the main team both in her own language and manner of dress, behaviour, and she will definitely be mobbed, asserting themselves at the expense of another,” the expert believes. “In the same way, people of incredible mental strength and talent may suffer from mobbing by colleagues or even superiors. In such cases, the chief is usually afraid, this person surpasses him or her in many ways and in the near future, as such a boss believes, he or she can be “cut out” of position. And it is precisely in such cases that the manager is the one, who heads this process of harassing his employee, creating a volume that is unbearable for him or her so that one decides to leave this job. Moreover, such a bossing is a common phenomenon. Because, if the boss has already seized the chair, then he or she will do everything to prove his indispensability and competence. And God forbid if anyone seems smarter to him than himself, then such an employee will be destroyed. It is clear that with the hands of the team, the very close, who are trying to guess all the whims of the boss.”

Therefore, in order to develop a strategy of behavior, a person needs to decide whether one needs such a war. “If it has already begun, the employee will sooner or later, in one way or another, but will be forced to leave,” Victoriya Gladkykh says. “Very often it is possible to observe now how the same vacancy regularly appears in some company. Usually, they take people from the street, they work during a probationary period, and then they are dismissed, as if due to lack of professionalism, and again they take a person. But this “non-professionalism”, as a rule, at the suggestion of higher-level managers, is artificially created for these people. Of course, every team needs to deal with such things individually, but there is no protection against mobbing in our society now.”

Mobbing & Labor Discrimination

Scientists also suggest, instead of the term of foreign origin “mobbing”, to try to find a Ukrainian analogue for this phenomenon. On the one hand, if we consider that Ukraine is moving to Europe and our terminology must be adapted to European legislation, the use of the word “mobbing” is appropriate. On the other hand, teachers of the Faculty of Law of the Academy of Labor, Social Relations and Tourism note that in the current Ukrainian legislation there are very few words of foreign language origin since the principle of use of words that are in the Ukrainian dictionary is valid.

“If it is necessary to designate some phenomenon, but there is no correspondence in our dictionary, only then it is appropriate to use a foreign language term,” Yaroslav Zhuravel explains. “At the “round table” I formulated a proposal to replace the term “mobbing” with “labor discrimination”, providing my definition of this concept. Labor discrimination is a form of psychological violence, which consists of long-term systematic psychological pressure on an employee in a team for the purpose of his subsequent dismissal. Here, the authors of the bill exclude sexual harassment, because for this act, article 154 of the Criminal Code of Ukraine provides criminal liability. My definition does not have the term “persecution” because it is a form of psychological violence. That is, persecution is just a small facet of a big cornerstone of the problem.”

So, in order for anti-discrimination labor legislation to become truly effective, first of all, the concept of “mobbing” should be clearly defined. Secondly, there should be established the most comprehensive list of possible forms of illegal acts, qualified as mobbing. And thirdly, a simple mechanism for proving the facts of mobbing and bringing the perpetrators to legal responsibility should be provided. Otherwise, we will have another “blind spot” in national legislation.

Text by Larysa Vyshynska