A recent case raised the question of whether an employer was liable in damages for mental health issues that a social and healthcare worker had suffered as a result of bullying by her co-workers.
Employers must ensure that work at all stages is planned, organised and carried out in such a way that the effects on the psychological working environment are fully adequate in terms of health and safety.
In the case at hand, the employee had worked at a residential home for several years where, according to her, there had been a gradual deterioration in the physical and psychological working environment. The employee explained that she had been subjected to harsh communication, accused of lying and mocked when making suggestions. This continued for a six-month period until the employee entered into a severance agreement with the employer as it was contemplating dismissal on grounds of sickness absence and cooperation issues.
The employee reported the psychological impact of the workplace bullying as a work-related illness, and the Labour Market Insurance (AES) assessed that she had suffered from an unspecified stress reaction as a result of the bullying. She was assessed as having a permanent injury of 10% and a loss of earning capacity of 45%.
The employee's trade union claimed compensation for pain and suffering, compensation for loss of earnings and compensation for loss of earning capacity from the employer. The trade union contended that the employee had been bullied and that the management had known about this but had failed to intervene, and for this reason the employer had breached its obligation to ensure an environment free of bullying and harassment.
In this regard, the employer submitted, primarily, that the severance agreement was made in full and final settlement of all financial claims. The employer further submitted that the employee had not established that she had been subjected to bullying and harassment (eg, because she had not communicated this to the management and that her sick leave was due to issues following a physical industrial injury). The management had tried to solve the challenges arising from the workplace communication in an appropriate manner.
The district court found that the issues of bullying and harassment had not been discussed when negotiating the severance agreement. Therefore, the employee was not prevented from claiming damages from the employer even though it was stated in the agreement that "the matter is considered closed and cannot be reopened".
Based on the witness statements, among other things, the district court found that the emloyee had suffered an industrial injury due to workplace bullying. The district court considered that the management knew that she was being bullied because of several inquiries from the health and safety representative. Despite this, the employer had not taken any general or specific measures in order to stop the bullying, and the district court therefore ruled that the employer was liable to pay damages.
In the appeal case, the high court agreed with the district court, referring to the fact that the witness statements given during the proceedings were supported by statements to Labour Market Insurance shortly after the parties had entered into the severance agreement. The high court further referred to the fact that the team manager had not intervened effectively when attending some of the meetings in which the employee had been bullied.
The high court found that the mental health problems had triggered the employee's sick leave that led to the conclusion of the severance agreement. On this basis, the high court upheld the judgment of the district court.
This is one of the first cases in Denmark in which an employee has succeeded in a claim for damages resulting from a poor psychological working environment and which emphasises the employer's obligation to ensure an environment free of harassment and bullying, both generally and specifically in relation to employees who express challenges in this regard.
Further, the judgment is based on the specific circumstances of the case and must be understood in light of the fact that the majority of the witness statements, including statements from management representatives, supported the fact that there was a poor psychological working environment (eg, resulting from disagreements between the employees) and that several witnesses explained that the harsh workplace communication had particularly affected the employee in question.
For further information on this topic please contact Yvonne Frederiksen at Norrbom Vinding by telephone (+43 35 25 3940) or email ([email protected]). The Norrbom Vinding website can be accessed at norrbomvinding.com.