11 Jul mobbing

The phenomenon of mobbing constitutes one of the most complex manifestations of oppressive conduct capable of developing in the work environment and represents, still today, one of the areas in which criminal law encounters the greatest difficulties of interpretation and application. Unlike what happens in other European systems, the Italian legislator has never introduced a specific incriminating case dedicated to mobbing, with the consequence that this phenomenon does not assume autonomous criminal relevance, but it is framed through the individual incriminating rules possibly violated by the conduct that composes it. The notion of mobbing has therefore been developed by jurisprudence and doctrine, which have progressively identified a unitary figure characterized by a plurality of hostile behaviors, systematic, reiterated and prolonged over time, implemented against a worker with persecutory purposes, discriminatory, mortifying or expulsive, capable of compromising their psychophysical balance, personal dignity, professionalism and, in the most serious cases, the same permanence of the employment relationship. The origin of the notion can be traced back to the studies of the work psychologist Heinz Leymann, who identified mobbing as a process of psychological persecution developed through a series of apparently legitimate acts when considered individually, but overall capable of causing serious harm to the victim. This approach has also been progressively implemented by Italian jurisprudence, which however clarified that the concept developed by psychology cannot automatically be transferred to the penal level, where the constitutional principles of legality apply, strictness and specificity of the criminal case. Precisely the principle of legality, sanctioned by the art. 25, comma 2, of the Constitution and art. 1 the Penal Code, in fact, it prevents punishing behavior in the absence of a specific regulatory provision, so mobbing, as a descriptive category of jurisprudential and doctrinal origin, cannot constitute an independent crime.

The Court of Cassation has repeatedly reiterated that mobbing does not represent an autonomous criminal act, but rather a way of realizing a plurality of conduct that, if they integrate the constituent elements of specific crimes, can take on autonomous criminal relevance. From this approach derives the consolidated orientation according to which the criminal judge is not called upon to ascertain the existence of mobbing as such, but rather to verify whether the individual disputed conduct constitutes one of the incriminating cases provided for by the penal code or by special legislation. In this sense, jurisprudence has progressively affirmed that the phenomenon can materialize through crimes such as personal injuries, when the harassment causes a clinically verifiable pathology; private violence, where the worker is forced through violence or threats to carry out or tolerate unwanted behaviour; the threat, defamation, the insult in the periods in which it constituted a crime, replacement of person, documentary falsity, unauthorized access to computer systems, violation of privacy, extortion in cases where the pressure is aimed at obtaining undue financial or professional advantages, as well as the persecutory acts provided for by the art. 612-to c.p., where all the typical elements of the case apply.

It aroused particular interest, in the jurisprudence of legitimacy, the relationship between mobbing and the crime of mistreatment against family members and cohabitants provided for by art. 572 c.p. In a first interpretative phase the Supreme Court had shown a rather extensive orientation, considering the crime to be configurable even in the workplace where the relationship is characterized by intense psychological subjection of the employee towards the employer. Subsequently, however, the orientation has consolidated in a more restrictive sense, limiting the applicability of the rule only to cases in which the working relationship presents characteristics of a para-family nature, that is, when the professional context is characterized by a particularly intense fiduciary bond, from a stable working coexistence, by an ongoing personal relationship and by a marked position of supremacy of the employer, such as to assimilate the relationship to a family one. The United Sections and subsequent jurisprudence have in fact clarified that modern business organisations, especially medium and large ones, do not normally allow us to recognize that particular personal relationship required by the art. 572 c.p., with the consequence that the use of this case must remain confined to absolutely exceptional cases.

From an objective point of view, jurisprudence identifies some essential constituent elements for it to be possible to talk about mobbing. First of all, a plurality of behaviors linked together by a unitary design is required, the occurrence of a single episode is not sufficient, however serious it may be. It is also necessary that such behaviors continue for an appreciable period of time, manifesting a systematic nature incompatible with isolated or occasional episodes. Conducts can take on the most diverse forms: isolation of the worker, illegitimate demotion, unjustified transfers, repeated specious disciplinary complaints, exclusion from meetings, theft of work tools, assignment of useless or degrading tasks, dissemination of denigrating news, public humiliations, obsessive checks, career obstacles, professional marginalization, continuous changes to the organization of work aimed exclusively at making it impossible to carry out the work activity. Considered individually, many of these behaviors could be perfectly legal or in any case devoid of criminal significance; what is relevant is their overall evaluation, as an expression of a single persecutory program.

On a subjective level, the so-called vexatious intent takes on particular importance. The Supreme Court has in fact highlighted how mobbing requires a unitary plan aimed at marginalizing or humiliating the worker. This element does not necessarily coincide with a feeling of personal hatred, it being sufficient that the agent consciously pursues a strategy aimed at progressively excluding the victim from the working context or inducing him to resign. The evidence of the subjective element represents, however, one of the most complex aspects of judicial assessment, since the persecutory program rarely emerges from explicit declarations. It is normally reconstructed through a logical-inductive procedure based on the reiteration of conduct, on their apparent irrationality with respect to the organizational needs of the company, on their systematic nature, on the relational context and on the consequences produced towards the offended person.

The Supreme Court has also clarified that not every situation of workplace conflict can be classified as mobbing. The exercise of managerial power, organizational and disciplinary measures attributed to the employer by the law can certainly lead to unfavorable decisions for the employee, but such decisions, if justified by real business needs, they do not take on a persecutory character. Likewise, the simple deterioration of interpersonal relationships, character differences, frictions between colleagues, negative evaluations of work performance, disciplinary measures based on actual violations of contractual obligations or organizational changes motivated by production needs are not in themselves sufficient to integrate the phenomenon of mobbing. In fact, jurisprudence distinguishes mobbing from straining, figure also developed in case law, characterized by one or more conducts, even if isolated but capable of producing permanent negative effects on the victim's working conditions, despite the absence of the typical systematic nature of mobbing. Although straining can take on civil law relevance for the purposes of compensation for damages, it does not automatically determine criminal consequences, also in this case the existence of the constituent elements of the individual incriminating cases must be verified.

When the harassment actually compromises the worker's state of health, the crime of personal injury takes on particular importance. In such cases it is essential to demonstrate, through adequate health documentation and medico-legal advice, that the diagnosed pathology is a direct consequence of the oppressive conduct. Jurisprudence requires a rigorous assessment of the causal link according to the criteria developed in the field of criminal causation, excluding any automatism between the conflictual working environment and the onset of the disease. Anxiety disorders, sindromi depressive, chronic stress pathologies, adaptation disorders or other mental impairments can only take on penal importance if it is demonstrated, beyond any reasonable doubt, their causal derivation from the disputed conduct.

Proof of mobbing constitutes one of the most delicate aspects of the entire procedure. The Court of Cassation highlighted how the assessment must be based on a global evaluation of the evidentiary elements, including testimonials, company documentation, electronic communications, disciplinary measures, service orders, recordings legitimately made, medical certifications, technical consultancy and any other element suitable for reconstructing the working context. The criterion of unitary evaluation of the pipelines assumes particular importance, since apparently insignificant episodes can take on a completely different meaning if placed in a broader persecutory context.

Criminal law doctrine has widely questioned the opportunity to introduce a specific crime of mobbing. According to an initial orientation, an autonomous discipline would make it possible to fill the gaps in the current system, guaranteeing more effective protection of the worker's dignity and simplifying judicial assessment. Other authors, instead, they believe that such a choice would risk compromising the principle of specificity of criminal cases, attributing to the judge an excessively wide margin in the qualification of conduct. It is observed, indeed, that mobbing constitutes an extremely heterogeneous phenomenon, susceptible to taking on different forms in relation to the organizational context, to the company structure and relational methods, making it particularly difficult to identify a legislative case that is sufficiently precise to respect the constitutional principles of legality and mandatory nature.

Alongside criminal protection, the protection offered by the civil and labor law continues to play a central role. L’art. 2087 of the civil code in fact imposes on the employer the obligation to adopt all the necessary measures to protect the physical integrity and moral personality of the worker, configuring a closure rule for the entire prevention system. Violation of this obligation may determine the employer's contractual liability and the obligation to compensate both pecuniary and non-pecuniary damage., including biological damage, moral and existential within the limits currently recognized by jurisprudence. The interaction between civil protection and criminal protection confirms how the Italian legislator has favored a multilevel system, in which criminal repression represents only one of the tools for protecting the worker's person.

In conclusion, mobbing continues to represent a descriptive category of extraordinary practical importance but without incriminating autonomy. The jurisprudential evolution of recent decades has progressively refined the criteria necessary to distinguish it from the ordinary conflictual dynamics of the work environment, enhancing the systematic nature of conduct, the persecutory plan, the causal link with the damage suffered and the traceability of the individual actions to the criminal cases typified by the legislator. The absence of an independent crime of mobbing does not entail, therefore, a lack of protection, but requires the interpreter to rigorously verify the concrete offensiveness of the conduct, in compliance with the fundamental principles of criminal law and the balance between the needs of personal protection and the constitutional guarantees that govern the exercise of the State's punitive power.