Harassed at work: the claim that puts a figure on the harm

The case, in five lines

What is brought

Fundamental rights protection claim against harassment, seeking a declaration of the breach, radical nullity of the conduct, its immediate cessation and compensation for the moral harm and additional losses.

Before which court

The Social Section of the Tribunal de Instancia (the first-instance court), with the Ministerio Fiscal (the public prosecutor) always a party in defence of fundamental rights and of full redress for the victim.

Deadline

The claim must be brought within the prescription or lapse period set for the conduct in which the breach takes shape. If the harassment ends in a dismissal, the deadline becomes the twenty working days of the dismissal action.

Who can bring it

The victim, the only party with standing in this route, who chooses the type of protection sought. Claims may be directed both against the company and against any other person responsible, whatever their link with it.

Financial risk

Without solid indicators the company discharges its burden with a reasonable organisational justification and the case falls away. If you stay at the company while it runs, coexistence becomes hard, which is why interim measures are sought from the first pleading.

Leaving you with no work is not a minor punishment: it breaches a right

Article 4.2 ET grants the worker, within the employment relationship, the right to effective work. That is not a decorative formula: emptying someone of content, taking away their projects and leaving them waiting for assignments that never come breaches an express employer duty, and it is also the hardest form of harassment to deny, because it leaves a documentary trail in the company's own systems.

Letter e) of that same paragraph grants the right to respect for privacy and to the consideration due to one's dignity, including protection against harassment on grounds of racial or ethnic origin, religion or beliefs, disability, age or sexual orientation, and against sexual harassment and harassment on grounds of sex. Dignity is not an aspiration: it is a right enforceable before a court.

Article 177.1 LRJS opens the protection route to breaches of fundamental rights and public freedoms, expressly including the prohibition of discriminatory treatment and of harassment. That is the route: not a claim for money nor an internal grievance, but a constitutional case within the social jurisdiction, with its own guarantees and its own deadlines.

You can sue the person harassing you, not only the company

Article 177.4 LRJS allows the victim to direct claims both against the employer and against any other person who is responsible, whatever the nature of their link with the employer. And it specifies that it is for the victim, the only party with standing in this route, to choose the type of protection sought among those the law provides.

That choice is strategic and is made at the outset. The same provision clarifies that the direct author of the harm need not be sued alongside the employer, except where a ruling against them is sought or they could be directly affected by the decision. Suing the manager has an obvious deterrent effect, but it also hardens the position of the company and of that witness.

Article 177.1 also reaches claims brought against third parties linked to the employer on any basis, where the alleged breach has a direct connection with the provision of services. That matters in subcontracting chains, temporary work agencies and structures where the person giving daily orders is not formally your employer.

You supply the indicators and the company has to justify itself

Article 181.2 LRJS provides that once prima facie evidence of a breach of the fundamental right has been shown at the hearing, the defendant must supply an objective and reasonable justification, sufficiently proven, of the measures taken and of their proportionality. You do not have to prove the intention of the person harassing you, but a set of facts that makes it plausible.

That picture is built with verifiable facts, not adjectives. The date they stopped assigning you projects, the email removing you from a mailing list, the chart your name vanishes from, the calendar of meetings you are no longer invited to, the comparison with the workload of colleagues at the same level.

The company usually answers that this was a reorganisation or a business decision. That is where the shifted burden works: asserting it is not enough, it has to be proven and shown to be proportionate. A reorganisation that affects one person alone and coincides with the arrival of a particular manager stands up poorly at a hearing.

You can ask to stop depending on that person from the first pleading

Article 180.1 LRJS allows you to seek, in the very pleading that starts the case, suspension of the effects of the challenged act and any other measures needed to secure effective protection. There is no need to wait for judgment for the situation to change, and in a harassment case waiting is usually the most expensive thing you can do.

Paragraph 4 sets out the catalogue for harassment: suspension of the relationship, release from providing services, a change of post or workplace, the rearrangement or reduction of working time and any others that preserve the effectiveness of the judgment, including measures affecting the alleged harasser, who must then be heard.

And it moves fast. Paragraph 5 requires the parties and the Ministerio Fiscal to be summoned, within the day following admission or the request, to a preliminary hearing held within the next forty-eight hours, and paragraph 6 requires a decision at the end of that hearing by an order given orally. In cases of exceptional urgency the measures can be granted when the claim is admitted.

The compensation is set out in the claim and serves to deter

Article 179.3 LRJS requires the claim to state clearly the facts constituting the breach, the right infringed and the amount of compensation sought, specifying the losses and the circumstances relevant to setting it: the seriousness, duration and consequences of the harm. The figure is not improvised at the hearing nor left to the court's discretion.

Article 183 LRJS directs the court to rule on that amount by reference to the moral harm attached to the breach and any additional losses, setting it prudentially where proving the exact figure would be too difficult or costly, so as to compensate the victim adequately, restore her earlier situation and also help prevent such harm. That last purpose is what makes it deterrent.

To reason the seriousness, we turn to how the law itself classifies that conduct. Article 8 LISOS treats as a very serious infringement acts by the employer contrary to respect for privacy and to the consideration due to workers' dignity, sexual harassment and, in its paragraph 13 bis, harassment on grounds of sex and other grounds where, once known to the employer, it failed to take the measures needed to stop it.

If you also want to leave the company, the case changes route

Article 178.1 LRJS limits the object of this case to the breach of the fundamental right, with no possibility of adding actions of another nature. If what you also want is to end the contract with compensation, the route is not this claim on its own but the procedural modality matching that remedy, with the protection claim accumulated inside it.

Article 184 LRJS orders it so: claims for dismissal and other causes of termination in which a breach of fundamental rights is invoked go through their own procedural route, as priority cases, with the protection claims accumulated within them. Article 178.2 ensures that even on that route the rules of this chapter apply, including summoning the Ministerio Fiscal.

In practice that means claiming termination under article 50 ET with the protection claim inside it, and article 183.3 LRJS confirms that the moral harm compensation is compatible with whatever is due for the termination. For that case, article 79.7 LRJS also allows interim measures with the employer's duty to pay contributions and wages maintained.

How we run the case, step by step

1. 1

   Setting down the timeline and the starting date

   We order the facts by date and determine when time starts running, because continuing conduct and an isolated act are not counted alike. That calendar is the backbone of the claim and of the picture of indicators.

2. 2

   Securing the evidence while you still have access

   We download emails, calendars, project assignments, mailing lists and organisation charts before any move. Once the conflict becomes formal, those accesses are cut off and the evidence of being left without work is the first to disappear.

3. 3

   Deciding who is sued and what protection is sought

   We decide with you whether the claim goes only against the company or also against the manager, and what kind of protection is sought: cessation and compensation, or in addition a compensated exit through termination.

4. 4

   Seeking interim measures in the same pleading

   In the claim we seek the measures under article 180.4 LRJS that fit your situation, with the initial evidence the preliminary hearing requires. That hearing takes place within forty-eight hours and is decided orally.

5. 5

   Quantifying the harm and reasoning it

   We set the figure with written bases: seriousness of the conduct, duration, consequences evidenced by medical reports and how article 8 LISOS classifies that conduct. The amount goes in the claim, as article 179.3 LRJS requires.

6. 6

   An urgent hearing and enforcement of what is won

   The case is urgent and takes priority, with the Ministerio Fiscal as a party. If the judgment upholds the claim, we monitor the actual cessation of the conduct, the restoration of your earlier situation and payment of the compensation awarded.

The law that applies

• Art. 4.2 ET. Within the employment relationship it grants the right to effective work and the right to respect for privacy and to the consideration due to one's dignity, including protection against harassment on grounds of racial or ethnic origin, religion or beliefs, disability, age or sexual orientation, and against sexual harassment and harassment on grounds of sex. BOE-A-2015-11430
• Art. 177 LRJS. It opens the protection route to breaches of fundamental rights, including the prohibition of harassment, reaches third parties linked to the employer, makes the Ministerio Fiscal always a party, and gives the victim, the only party with standing, the power to choose the type of protection and to bring claims against anyone responsible. BOE-A-2011-15936
• Art. 180 LRJS. It allows interim measures to be sought in the claim itself and lists, for harassment, suspension of the relationship, release from providing services, a change of post or workplace and the rearrangement or reduction of working time. It requires a preliminary hearing within forty-eight hours decided by an oral order. BOE-A-2011-15936
• Art. 181.2 LRJS. It provides that once prima facie evidence of a breach of the fundamental right is shown at the hearing, the defendant must supply an objective and reasonable justification, sufficiently proven, of the measures taken and of their proportionality. BOE-A-2011-15936
• Art. 183 LRJS. It requires the court to rule on compensation for the moral harm attached to the breach and for additional losses, to set it prudentially where proving the exact figure would be too difficult or costly, with the aim of compensating and of preventing such harm, and declares it compatible with whatever is due for the termination of the contract. BOE-A-2011-15936
• Art. 8 LISOS. It classifies as a very serious infringement acts by the employer contrary to respect for privacy and to the consideration due to workers' dignity, sexual harassment within the scope of managerial powers and, in its paragraph 13 bis, harassment on grounds of sex and other grounds where, once known to the employer, it failed to take the measures needed to stop it. BOE-A-2000-15060

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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