Private Investigations: Mobbing (Workplace Harassment)

The term “mobbing” generally refers to a series of persecutory acts or behaviours inflicted by one or more individuals on another in a work context, with the intent of marginalising and excluding the target from their social group. It is a form of abuse and sustained psychological violence, carried out in specific ways and over time, against a colleague, a subordinate or simply a weaker individual, with the clear intent of causing harm.

When does mobbing become legally relevant?

In order for mobbing to acquire legal significance, it is particularly necessary that the psychological terror manifests in aggressive and harassing behaviours which are repeated, regular and frequent over time, and which cause the target a state of stress, agitation and nervousness forcing them to alter their psychophysical equilibrium.

When is one in the presence of mobbing?

In the absence of a specific regulatory framework, it must be remembered that there is no precise criterion to determine action that constitutes mobbing. In general terms, any form of abuse perpetrated by one or more persons against a weaker individual may be relevant: ostracism, harassment, public humiliation, dissemination of false information. Examples of such behaviours include: repeated unjustified criticism, dequalification, ostracism, humiliation, harassment, bullying and mistreatment.

It is acknowledged that an intolerable, demanding, arrogant boss and persistently troublesome colleagues are common afflictions for many workers, yet not all conflictual relationships experienced in the workplace by superiors or peers may qualify as mobbing and give rise to a right to compensation. To discourage frivolous legal proceedings and provide courts with clear guidance, in the absence of a dedicated law, legal precedent (namely decision n. 10037/2015) has identified guidelines to recognise genuine mobbing and its common denominators.

These parameters that the victim must demonstrate include: environment, duration, frequency, type of hostile actions, power imbalance between antagonists, sequential phases, and persecutory intent. More specifically:

• The presence of harassment in the workplace or in a socially comparable context;
• The conflict, humiliation or other misconduct must last for a considerable period — it should not be episodic or sporadic but repeated and multiple over time;
• There must be more than one hostile act: attacks on communication capacity, systematic isolation, changes in job duties, attacks on reputation, threats, harassment and mistreatment;
• A clear power imbalance between antagonists: the complainant is psychologically destabilised and passively suffers the effects of the mistreatment;
• Presence of multiple successive phases: targeted conflict, beginning of mobbing, psychosomatic symptoms, abuse, health deterioration, exclusion from the work environment etc.;
• In addition to all this, there must be the persecutory intent, i.e., a clear premeditated design to torment the employee through dominating behaviour aimed at isolation and psychophysical destabilisation of the passive subject.

How to defend oneself against mobbing?

In our legal system various norms enable victims to seek protection against mobbing phenomena:

Constitutional protection

The first foundational safeguard is found in our Constitution. Article 32 recognises and protects health as a fundamental human right; Article 35 safeguards labour in all its forms; Article 41 prohibits private economic activities that may harm human safety, freedom or dignity.

Protection under the Civil Code

On the practical level, our Civil Code contains two essential provisions that support victims of mobbing behaviour:

• Article 2043 c.c. provides for compensation by anyone who causes unjust damage to others through any wilful or negligent act;
• Article 2087 c.c. obliges the employer to adopt all suitable safety measures to protect the physical integrity and moral personality of workers.

Protection under the Penal Code

Although there is no offence of mobbing per se, such behaviours may, under certain conditions, amount to personal injury (Article 590 c.p.) or acts of persecution commonly called stalking (Article 612bis c.p.).

Protection under special laws

Safeguards against mobbingtype behaviour may also be found in the Workers’ Statute (Law 300/1970) – particularly the provisions governing disciplinary proceedings and prohibiting discriminatory practices. Mobbing often occurs in large companies where the practice is used to circumvent dismissal laws by forcing an ‘undesirable’ worker to leave under psychophysical duress. An additional general safeguard is in the Consolidated Law on Health and Safety in the Workplace.

Civil damage compensation

Victims of mobbing thus primarily find protection through civil remedies available under our system. They can bring the alleged mobber to a civil court to establish liability for the damage caused and obtain compensation for suffering, aided by evidence gathered by a private investigator or investigation agency. The types of damage that may be awarded include nonmaterial damage as well as material damage.

The “mobbised” individual may be compensated for nonmaterial suffering resulting from the persecutory conduct, which must be assessed globally: impairment to psychophysical health (biological damage), moral suffering (moral damage), and adverse effects on daily life (existential damage). Additionally, in some cases material damage may be reimbursed: for example, medical or pharmaceutical expenses incurred due to the psychophysical harm from mobbing, or loss of earnings due to forced inactivity, missed career advancement, damage to professional image, and so on.

The burden of proof

In order to obtain compensation, the passive subject must provide precise and detailed proof of the suffering and distress they have experienced:

• They must show that a series of persecutory behaviours with harassing intent were directed at them and that these were repeated and constant over time. The role of the investigative agency is — via its private investigators and a carefully planned investigation — to gather admissible evidence for the victim’s use in court.
• The structural elements of mobbing conduct are multiple behaviours, with a clear persecutory intent, executed in a deliberately systematic and protracted manner. The victim must show these behaviours were not a single isolated incident but were repeated over a mediumlong timescale.
• A further essential piece of evidence is damage to psychophysical health, which can be documented by witness statements and, even more effectively, by expert reports and medical certificates attesting to depression, frustration or similar conditions.
• Finally — and this is the most delicate proof to provide — there must be a clear causal link between the reported conduct and the damage suffered. A private investigation carried out by a licensed agency can be highly useful to document these distressing situations before the court.

Mobbing in the workplace

The main context in which the concept of mobbing originally emerged as a legally relevant behaviour is the workplace. In this context, mobbing is manifested in all those behaviours that an employer or colleagues carry out, for various reasons, to marginalise and force out a certain worker.

From this definition one may derive a basic classification of mobbing: vertical mobbing vs horizontal mobbing.

• Vertical mobbing (or “bossing”) is the classic form, where harassment and mistreatment are inflicted by one or more direct superiors against an employee. In such cases the possibilities of resistance are often very limited due to the imbalance of power. This practice combines, in a premeditated way, intimidating actions with actual psychophysical violence and exclusion from work privileges normally shared among employees. These measures often affect specific job assignments, excluding the target from staff meetings, hiding information from them that is shared with others. Among other behaviours is role reduction—in the company community a highperforming employee may be demoted to trivial tasks like making copies or handling mail, thus demotivated and restricted in the expression of their skills. The Italian Supreme Court has clarified that such conduct may be qualified as mobbing by the employer when it violates article 2087 c.c. and consists of repeated and prolonged hostile behaviour, intentional discrimination and psychological persecution, humiliation and exclusion of the worker (see Cass. civ., 26 March 2010 n. 7382). In its ruling of 10 January 2012 n. 87, the Court held that mobbing must be understood “as a systematic and protracted conduct of the employer towards the employee in the workplace, consisting in systematic and repeated hostile behaviours that come to assume forms of domination or psychological persecution, resulting in moral humiliation and marginalisation of the worker, with harmful effect on their psychophysical equilibrium and personality”. The intent is to create in the victim a sense of exclusion, frustration and growing – often intolerable – anxiety. In these cases the possibility of resisting such behaviour is often very limited due to the power imbalance. The assistance of a private investigator, as noted earlier, can be fundamental to prove such conduct.
• Horizontal mobbing, on the other hand, refers to persecutory acts carried out by one or more colleagues against another equal in rank, often aimed at discrediting the worker’s reputation and undermining their position. These behaviours are difficult to face and report, especially when executed by a group. With its recent ruling n. 27931 of 4 December 2020, the Supreme Court issued a significant judgment on the extension of employer liability even for indirect wrongdoing. In fact, the Court affirmed that even if mobbing does not come directly from the employer, who thus did not carry out harassing conduct, the employer remains liable under article 2087 c.c. for failure to fulfil their protection duties, if the mobbing originates from a peer or superior—irrespective of whether the employer was aware of the injurious conduct.

Though rare, socalled “reverse mobbing” or low mobbing may also occur. This covers a series of actions aimed at undermining the reputation of prominent company figures, for example following a perceived inadequate behaviour or simple reasons like dislike or envy of the power shown or position attained. This situation may arise in times of business crisis: the boss may be blamed for organisational problems, poor reputation, lack of competitiveness, and become the target.

Mobbing outside the workplace

Until now we have spoken exclusively of mobbing in the workplace context. However, in recent years the concept of mobbing — and accordingly its protections — has extended to other social contexts. Examples include:

• School mobbing
  This occurs, for example, within the school environment where students may become victims of bullying from other students or teachers. Consider cases of unfounded disapproval of a student’s habits or ideas, or worse, prejudice against them on the basis of origin, tradition or ethnicity.
• Family mobbing
  Another social context in which mobbing may occur is the family. This for example concerns cases where one spouse seeks to monopolise the attention of the children and, for that purpose, excludes the partner from family matters. Clearly, this type of mobbing is harmful not only to the stability of the family unit and the health of the direct victim, but also to that of the children and the whole family.

Relying on the investigation agency Argo Investigazioni and on the professionalism and experience of its certified private investigators is the best way to defend oneself against mobbing. Our investigative service is also available for cases of school mobbing and family mobbing.