Mobbing and criminal law: what is the relationship?

The Court of Cassation, by judgment no. 23358/2016, returns to the criminal-law protection of mobbing. Called upon to rule on a case in which an employee had been the victim of continual outbursts, humiliations and hostile and ridiculing conduct by the owner of a business, the Court excludes the application of Article 572 of the Criminal Code to the case before it.

The judgment does not deny that mobbing conduct may constitute the elements of Article 572 of the Criminal Code, but clarifies that that possibility can arise exclusively in working situations compatible with a context of so-called para-familiarity, and not also in an "ordinary business reality".

According to the Court of Cassation, mobbing can have criminal relevance, under Article 572 of the Criminal Code, only where the harassing conduct takes place in an employment relationship of a para-familial kind, that is in a small-scale working context in which the employment relationship between employer and employee is based on informality and trust.

Furthermore, almost at the same time as the reasons for this judgment were filed, the Court of Cassation also published the reasons for a second judgment in which, by contrast, harassing conduct to the detriment of a worker was held to constitute the elements of the offence under Article 572 of the Criminal Code. That discrepancy is only apparent. In the second judgment the person harassed performed his work in a family context, in which he had to deal daily with the relatives of his former spouse: "Persecutory practices directed at marginalising the worker may constitute the offence of domestic abuse when the relationship between the employer and the employee takes on a para-familial nature, being characterised by intense and habitual relations, by habits of life between the persons, by the subjection of one party to the other, and by the trust placed by the weaker party in the relationship in the person who occupies the position of supremacy. It is not, therefore, necessary that the formal conditions for the existence of a family business under Article 230-bis of the Civil Code be met" (Cass. Pen., Sixth Division, 15 September 2015, no. 44589).

That line of authority therefore confirms the argument that the offence of abuse under Article 572 of the Criminal Code applies only to situations comparable to para-familiarity, and that confirmation could further strengthen the line of case law (now the majority) which excludes the criminal relevance of harassing conduct in the workplace in cases of mobbing within medium-sized and large companies.

On the other hand, that same line of authority clarifies that the non-application of Article 572 of the Criminal Code does not in any event mean that mobbing conduct is simply exempt from criminal sanction; where the elements are present, harassing conduct may constitute the elements of other criminal offences: "Despite the reaffirmation of the principle that the offence is in the abstract capable of being made out in the given conditions, and confirming the frequent finding that it is inapplicable in the cases considered, it should be clarified that the offence under Article 572 of the Criminal Code does not constitute the criminal-law protection of so-called workplace mobbing, which, where it gives rise to independently punishable conduct (insults, defamation, threats, blows, personal injury, private violence, false imprisonment, and so on), finds its protection in the corresponding offences" (Cass. Pen., Sixth Division, 29 September 2015, no. 45077).

For further reading, this text is noted: Mobbing: socio-legal analysis, compensable damage and criminal-law aspects.