Can every complaint by the employer be treated as workplace harassment?

First, one case description. An employee returning from parental leave discovers that since the employer has since moved to other office premises, he no longer has his own desk. The employer allows the employee a home office by creating the necessary conditions. After a few months, the employer expresses dissatisfaction that the employee does not go to work in the office and offers the opportunity to work at someone else’s desk when the other employee is not in the office, or to work in the break room.

The parties still agree to continue working remotely, but the employee must include the manager in the copy line of all e-mails sent to colleagues regarding work tasks to prove that the work is done.

A few months later, a training is held at the employer, which the employee does not take part in because he is on vacation. The employer does not allow the employee to participate online. The employee was also unable to participate in refresher training due to family obligations. The employee and the training provider agree that the latter will introduce the most important content of the training to the employee individually, but the employee’s immediate supervisor blames the employee for not participating in the trainings and believes that the employee should not bother an already very busy colleague in this way.

Do the described circumstances provide a basis for submitting allegations of workplace harassment? What are the employee’s and employer’s options?

In working relationships, respectful attitude and trust are the keys to successful cooperation. At the present time, employees are very sure to classify any activity of the employer as harassment, to terminate the employment contract as a result of this, and to turn to the labor dispute body with the identification of harassment and claims for compensation. In most cases, however, such claims remain unsatisfied, because every unfavorable decision or act of the employer towards the employee cannot be considered as workplace harassment.

There is no concept of labor harassment in legislation. The practice of courts and labor dispute commissions is based on the following concept: harassment is hostile and unethical behavior that is systematic and long-term, directed at one or more people who are in a helpless and defenseless position because of it.

Bullying means repeated treatment in an unpleasant or humiliating manner in such a way that it is difficult for the employee to defend himself against it. In practice, such examples are repeated verbal humiliation or threats against which it is difficult for the employee to defend himself. The situation described above may not be classified as workplace harassment if a dispute arises, because the employer has not degraded the employee, and the employer’s systematic and long-term hostile behavior towards the employee is not evident from the case.

The employer has the right to control and manage the work of the employee. It is certainly not in accordance with occupational health and safety requirements to require working in a rest area, but it may be permissible to provide employees with a shared or different desk every day. On the other hand, if all other employees have their own desk in the office and a personal workplace is not provided only to an employee who has returned from parental leave, then it may be an unequal treatment of the employee by the employer.

With the consent of both parties, entering into agreements for remote work is not only permitted, but also a widespread way to make employment relationships more flexible. From the surface of the circumstances, it seems that the employer was more concerned about whether the employee would work while in the home office. One way of checking is to involve the employer in correspondence with colleagues.

As for not participating in the training, the employee could not participate in the training and agreed with the trainer that he would introduce the important information discussed at the training to the employee separately. A one-time unpleasant remark to an employee by the manager’s assistant is not classed as harassment.

In case of problems, the employee and the employer cannot remain passive

An employee who has returned from parental leave has the right to continue in the same position with the same conditions that applied before going on leave. Therefore, as a first step, the employee should have drawn the employer’s attention to the fact that his employment contract provided for working in the office, therefore the employer is obliged to ensure the same working conditions for the employee (including the possibility of working in the office). Permanently working from a home office instead of an office requires changing the employment contract and the agreement of both parties.

According to the description of the circumstances, the employee did not object to remote work, but works in the home office most of the time by agreement. In order to prevent future disputes, it is advisable to formalize the remote work agreement in writing (the corresponding requirement also follows from TLS § 6, paragraph 4). When performing remote work, the employer plays an important role in guiding the employee and ensuring suitable tools for the performance of work tasks.

The employee has the right to be absent from training in connection with vacation (because vacation gives the right to refuse work – see TLS § 19) and to reasonably demand time off to fulfill family obligations, taking into account the interests of both the employer and the employee. The employee was disturbed by the complaint made by the manager’s assistant about not participating in the training and allegedly bothering the trainer, but the employee apparently did not think it was possible to express this to the manager’s assistant. In such a case, the employee has the obligation to report the incident that significantly disturbed him or her to the immediate manager, personnel manager, working environment specialist or, for example, the legal representative of the employer. This gives the employer an opportunity to resolve the situation.

The employer risks that the employee terminates the employment contract in an emergency

Bullying is a psychosocial risk factor, the risks associated with which must be assessed and prevented by the employer. If information is received about alleged workplace harassment, the employer must not remain passive. Since it is difficult to prove verbal appeals in the event of a later dispute, problems and solutions in workplace harassment cases should also be formalized in writing if possible.

If the employer does not do anything to change or improve the situation, the employer risks that the employee terminates the contract on the basis of § 91 (2) of the Employment Contracts Act. Upon termination of the employment contract on this basis, the employee has the right to leave work without notice and to claim compensation equal to three months’ average salary. However, an extraordinary termination of the employment contract can only take place if the employer has significantly breached its obligations and this has made further fulfillment of the employment contract impossible for the employee.

In the event that the employer does not agree to the extraordinary termination of the employment contract, the employer is obliged to apply to the labor dispute committee or the court within 30 calendar days and demand that the termination of the employment contract be declared void. If the employer does not object to the employee’s extraordinary termination of the employment contract within 30 days, the termination will take effect and the employer will be obligated to pay compensation corresponding to three months’ average salary.

The occurrence and indirect approval of workplace harassment (e.g. if the employer does not react to workplace harassment) can be considered a breach of the employment contract, causing non-pecuniary damage to the employee.

It should be emphasized that not every violation of the employment contract entails the obligation for the employer to compensate the non-pecuniary damage caused to the employee. In the case of a claim for non-pecuniary damage compensation, the court or labor dispute committee will determine the compensation based on its discretion, but employees may submit claims corresponding to the amount of the employee’s salary for one year. To a certain extent, compensation for non-pecuniary damage always also expresses the extent to which the offender’s illegal act is reprehensible.

Therefore, if the employer remains passive in the processing of workplace harassment complaints, the employee may terminate the employment contract and, in addition, demand compensation for non-pecuniary damage. In other words, failing to respond to work harassment may result in the employer having to pay a significant amount of financial compensation.