Sexual Harassment and Mobbing in Business Life

PSYCHOLOGICAL AND SEXUAL HARASSMENT AT WORK

Sexual harassment and psychological harassment (mobbing) in business life are among the serious problems that negatively affect the physical and mental health of employees and cause unrest in the working environment. According to the ‘Report on Experiences of Violence and Harassment at Work’ published by the International Labour Organization (‘ILO’) in 2022, 17.9% of employees worldwide are subjected to psychological violence at work. This rate is highest in the Americas with 29.3%.^[1] Studies show that 154,000 people in Sweden, 800,000 people in Germany, and 4,000,000 people in the United States are seriously ill due to psychological harassment^.[2 ] Sexual harassment is a problem experienced by 6.2% of employees worldwide, while this rate rises to 11.8% in the Americas.

In Turkey, mobbing and sexual harassment in the workplace continue to be an important problem. Between 2011 and 2016, 38,262 people applied to the Ministry of Labour and Social Security’s ALO 170 hotline with mobbing complaints; 31,113 of these applications were from the private sector and 7,149 from the public sector. According to the results of the ‘Perceptions and Experiences of Violence and Harassment in the Workplace’ survey conducted by ILO and Özyeğin University in 2023, more than 75% of employees in Turkey have been subjected to violence and harassment at work at least once during their careers.

In this article, the definition of sexual and psychological harassment, its place in Turkish legislation, the responsibilities of employers within the scope of the duty of supervision, the legal remedies that employees can apply and recommendations for the parties are discussed within the scope of this extremely important issue in working life.

1. PSYCHOLOGICAL HARASSMENT (MOBBING)

Psychological harassment, in other words mobbing, refers to the systematic and continuous psychological pressure of one or more persons against another employee in the workplace, intimidating, excluding or forcing him/her to leave the job. [3]

• Deliberate, systematic and continuous realisation of actions

The aim of psychological harassment is often to make the targeted employee lose self-confidence and leave the workplace. For this reason, it is seen that the acts accepted as psychological harassment are not carried out against a targeted person once, but in a systematic manner. As a matter of fact, the Court of Cassation, in its decisions, defines psychological harassment as ‘targeting a specific personin workplaces, etc. intimidation, exclusion and discrediting by targeting a specific person within a community, systematically preventing his/her work and causing him/her to be uneasy; In other words,it is defined as ‘a psychological and even physically aggressive behaviour that is applied to the self-confidence of a person who is declared undesirable by one or several people in the workplace, to intimidate, harass and intimidate by excluding the person they declare as an undesirable person with a continuous frequency with the aim of intimidation’[4], ‘all kinds of repeated behaviours such as mistreatment, threats, violence, humiliation that are systematically applied to employees in the workplace by other employees or employers’[5] and states that ‘in order for an act to be considered mobbing, it must be systematic, continuous and deliberate’[6].

• Realisation of the Action within the Labour Relationship

In addition to psychological harassment being systematic and continuous, in order to talk about psychological harassment at the workplace, the action must take place within the employment relationship. In order to ensure the context of the employment relationship, the relevant act does not have to be performed at the place where the work is performed, and pursuant to Article 2 of the Labour Law No. 4857 (‘Labour Law’), ‘Places that are qualitatively related to the goods or services produced by the employer at the workplace and are organised under the same management (places connected to the workplace) and other annexes and tools such as resting, breastfeeding, eating, sleeping, washing, examination and care, physical and vocational training and courtyards are alsoconsidered within the concept of workplace’. In this direction, psychological harassment at the workplace will also come to the agenda if the action is carried out in places connected to the workplace.

• Actions Considered Psychological Harassment

Psychological harassment, which isa collective attack[7]on the targeted person’s honour, personality, character, belief, values, skills, experience, knowledge, thoughts, ethnic origin, lifestyle, culture, etc., can be seen in many different ways. The General Assembly of Civil Chambers of the Court of Cassation considers the most obvious examples of psychological harassment, including but not limited to

• Preventing the employee from showing himself,
• Interrupting,
• To scold loudly,
• Constantly criticising,
• Pretending to be absent from the work environment,
• Interruption of communication,
• Not to honour their opinions,
• False rumours, unpleasant insinuations,
• Not providing skilled labour,
• Constantly moving around, giving meaningless work,
• Heavy labour,
• Threats of physical violence. [8]

In addition to the above examples, behaviours such as ignoring the employee’s performance, interfering with private life, unnecessarily initiating disciplinary proceedings, distancing from supportive resources, threatening dismissal, time pressure to complete work in unreasonable or unnecessarily short periods of time are also included in the scope of psychological harassment.

• Difference of Psychological Harassment from Similar Concepts

It should be noted that some concepts in the doctrine are differentiated from psychological harassment. For example, bullying and stalking are among these concepts and it will be necessary to evaluate in which aspects these concepts differ from psychological harassment Bullying; In the United Kingdom and Australia, the term ‘bullying’ is used for behaviours that can be described as psychological harassment, which are generally aimed at damaging actions in military organisations, schools and workplaces, and ‘Bullying’ also means physical attack and threat. On the other hand, while physical violence is very rare in ‘psychological harassment’ behaviours at workplaces, emotional and psychological violence is more common. While ‘’bullying‘’ is mostly applied through rude words and behaviours, ‘’psychological harassment‘’ occurs as all kinds of hurtful and humiliating attitudes and behaviours in a more indirect and long-term manner, with both physical and psychological consequences. On the other hand, ‘psychological harassment’ is realised by a group of people, while ‘bullying’ is realised in the form of individual attacks.

Stalking; The word stalking, which originates from English, means systematically following and observing a person for a certain period of time. In the doctrine, stalking is defined as the unlawful persistent following and harassment of another person for a certain period of time and with repeated behaviours.

It should not be forgotten that such behaviours can turn into psychological harassment in the workplace if they are carried out by the victim’s colleagues or the employer[9].

1. SEXUAL HARASSMENT

Sexual harassment refers to verbal, written or physical behaviour of a sexual nature to which a person is subjected without his/her consent. While a systematic and continuous chain of actions is required for the acceptance of the existence of psychological harassment, sexual harassment can occur with a sudden and single act.

Sexual harassment is covered not only by the Labour Law but also by the Turkish Penal Code No. 5237 (‘TPC’) and pursuant to Article 105 of the TPC,“Any person who sexually harasses a person for sexual purposes shall, upon the complaint of the victim, be sentenced to imprisonment for a term of three months to two years or to a judicial fine, and if the act is committed against a child, to imprisonment for a term of six months to three years.’ Pursuant to the second subparagraph of the same provision, ‘ Ifthe offence is committed by taking advantage of the convenience provided by the public office or service relationship or by taking advantage of the convenience provided by working in the same workplace , the penalty to be imposed according to the above paragraph shall be increased by half. If the victim had to quit his/her job due to this act, the penalty shall not be less than one year.’

Article 102 of the TPC regulates the offence of simple sexual assault and according to the relevant provision, ‘The offence of simple sexual assault is contacting the victim’s body at a level that does not reach the level of sexual intercourse.’ Therefore, physical contact is essential for the realisation of the act of sexual assault. However, it should be noted that the behaviours of a person on his/her own body will constitute the act of sexual harassment, not sexual assault. According to the third subparagraph of the same provision, if the offence of simple sexual assault is committed ‘ by abusing the influence provided by public office or service relationship, the penalties imposed are increased by half.’

In addition to the effects of sexual harassment and simple sexual assault on the employee-employer relationship within the scope of labour law, which will be detailed under the heading ‘Legal Methods that the Employee Can Apply For’ below, as mentioned above, the relevant acts are considered as crimes under the Turkish Penal Code and the qualified form of the crime occurs if they are committed in the context of the employee-employer or employee-employee relationship.

It is important to note that although sexual harassment and sexual assault are legally considered as two separate issues within the scope of the Turkish Penal Code, in this article, since the relevant issue is addressed within the scope of Labour Law, sexual harassment will be used as the umbrella term for sexual harassment and simple sexual assault acts.

• Actions Considered Sexual Harassment

Sexual harassment is defined by the Court of Cassation as ‘any verbal, physical and/or other behaviour of a sexual nature, which includes threats against a person, humiliates and degrades him/her, causes emotional and psychological breakdown, and is directed against him/her against his/her will’[10].

Sexual harassment is defined and acts of sexual harassment can be seen in many different ways. In this direction, it should not be misunderstood that physical contact is necessary for sexual harassment to be accepted. An act of sexual harassment may also occur if a person continuously engages in sexually explicit behaviours against another person by exceeding the minimum distance between the bodies and intentionally and targeting his/her colleague.[11]

In the decisions of the Court of Cassation, the acts between employee-employer and employee-employee which are accepted as sexual harassment are as follows

• The employer sending messages to the employee at different times such as‘I want you to have my child, I want you to be mine’,[12]
• Making comments to the employee such as ‘my baby, how beautiful you are’, ‘what a beautiful girl you are’ ,[13]
• Persistent texting for the purpose of chatting, despite the employee’s statement that she ‘gave her phone number for work-related conversations and not to text again ’,[14]
• Taking scissors from the employee’s cheek,
• Unwanted attempts to touch, hug or kiss[15]

1. RESPONSIBILITIES OF THE EMPLOYER WITHIN THE SCOPE OF SUPERVISION OBLIGATION

Pursuant to Article 417 of the Turkish Code of Obligations No. 6098 (‘TCO’) titled ‘Protection of the Personality of the Worker’,‘The employer is obliged to protect and respect the personality of the worker in the service relationship and to maintain an order in the workplace in accordance with the principles of honesty, in particular to take the necessary measures to prevent psychological and sexual harassment of workers and to prevent further damage to those who have been subjected to such harassment.’

Accordingly, the fight against psychological and sexual harassment at the workplace is primarily the responsibility of the employer and the employer is obliged to prevent harassment and to take the necessary actions in the event of harassment. It is accepted that the limit of the scope of the employer’s duty of supervision is the rules of honesty and good faith regulated in Article 2 of the Turkish Civil Code No. 4721 (‘TCC’).

Pursuant to Article 24-2/d of the Labour Law titled ‘Employee’s Right to Immediate Termination for Just Cause’,‘Sexual harassment of the employee at the workplace by another employee or third parties and failure of the employer to take the necessary measures despite the employee notifying the employer of this situation’ is accepted as a reason for termination for just cause and the necessity of the employer to take the necessary measures is once again emphasised.

The Court of Cassation, in line with the doctrine and legislation, states that ‘The way to prevent harassment in the workplace is to provide an environment that will enable the victim of harassment to oppose and complain to the harasser without being subjected to any humiliation, and the perpetrator of harassment to know that he will be subjected to the necessary sanctions’ and emphasises that‘The employer must act sensitively, take the necessary measures to prevent harassment, to provide an environment where the victim can complain without hesitation, to investigate the allegations seriously and to apply the necessary sanctions.’[16]

In its decisiondated 13.05.2019 and numbered 2018/11266 E., 2019/10658 K., the 9th Civil Chamber of the Court of Cassation stated how the relevant process should be carried out in case the employee is sexually harassed by another employee or third parties. Pursuant to the relevant decision;“In the event that the employee is sexually harassed by another employee or third parties, this situation should be reported to the employer by the employee and the necessary measures should be requested to be taken. If the sexual harassment is known or knowable by the employer, the employee does not need to report the situation separately. The employer’s measures should be aimed at preventing the repetition of the incident to which the employee is exposed. Inadequate measures in this respect may also give the employee the right of justified termination. In the preamble of the article, the termination of the harasser’s employment, depending on the severity of the harassment, is listed among the measures to be taken by the employer. In the event that the sexual harassment is committed by a third party instead of an employee working in the workplace, the employer must take measures such as warning the customer, assigning another employee to deal with the customer and, depending on the severity of the act, terminating the relationship with the customer.”

1. LEGAL REMEDIES AVAILABLE TO THE EMPLOYEE

In the event that the employer fails to fulfil its duty of supervision and the employee is subjected to harassment, the employee may apply to the following legal remedies.

• Termination of the Employment Contract for Just Cause

Pursuant to Article 24-2/d of the Labour Law titled ‘Immediate Termination of the Employee for Just Cause’, the right of termination is granted to the employee in the event that‘the employee is sexually harassed by another employee or third parties in the workplace and the necessary measures are not taken despite notifying the employer of this situation’. Although psychological harassment is not explicitly defined in the Labour Law, psychological harassment can be considered within the scope of behaviours contrary to the rules of morality and good faith in line with the decisions of the Court of Cassation and the doctrine. Therefore, it is accepted that an employee who is systematically subjected to psychological harassment at the workplace may also terminate his/her employment contract for just cause.

• Compensation Claim

Pursuant to Article 417 of the TCO, ‘ Compensation for damages arising from the death of the employee, damage to bodily integrity or violation of personal rights due to the employer’s behaviour contrary to the law and the contract, including the above provisions, is subject to the provisions of liability arising from breach of contract’. Employees who have been subjected to sexual harassment or psychological harassment at the workplace may be entitled to claim the following compensation if they meet the necessary conditions.

• Material Compensation: The employee who has been subjected to harassment at the workplace may file a lawsuit for compensation for the material damages suffered as a result of the employer’s breach of the duty of care. Pursuant to Article 54 of the TCO, it is possible for the employee to claim bodily damages. For example, an employee who has health problems due to mobbing and cannot work for this reason may claim compensation for the income he/she could not earn during this period.
• Moral Damages: The employee, who is subjected to harassment at the workplace due to the employer’s breach of the duty of care, may claim non-pecuniary damages in accordance with Article 58 of the TCO due to the pain and grief he/she feels in response to the damage to his/her personal rights.
• Compensation for Deprivation of Support (by Relatives): In the event of the death of an employee who suffers from an occupational disease due to the employer’s breach of the duty of care, it is possible for those who are deprived of support to claim compensation in accordance with Article 53/3 of the TCO.

In many decisions of the Court of Cassation, it is seen that the compensation claims of the employee are accepted. The 9th Civil Chamber of the Court of Cassation in its decision 2012/38582 E, In the decision of 2012/43051 K. ’…After the plaintiff employee worked as a lawyer in a fixed position in … for a long time, he was assigned to the province of …, then he was constantly asked to work in different provinces for short periods of time, these practices of the employer were aimed at intimidating and harassing the plaintiff, even if the existence of psychological harassment is accepted by the court, the acceptance of the court that the conditions for moral compensation according to Articles 41 and 49 of the Code of Obligations are not correct, considering the way and duration of the practices considered aspsychological harassment (mobbing), moral compensation should be accepted. and 49 of the Code of Obligations is not correct, and considering the way and duration of the practices considered as psychological harassment (mobbing), the non-pecuniary damages should be accepted…” In the decision of the 9th Civil Chamber of the Court of Cassation 2015/30391 E., 2017/16011 K. “The local court rejected the claim for non-pecuniary damages on the grounds that the plaintiff was not subjected to mobbing and did not prove the mobbing claim. However, in the lawsuit petition, the claim for non-pecuniary damages was made not only due to mobbing, but also by claiming that the personal rights of the plaintiff were damaged. The court held that ‘… it is understood that the court decided to accept the severance pay claim on the grounds that ‘... due to the existence of an unfair and rude attitude towards all employees at the defendant employer, which offends their personality and honour, the employer violated its obligation to ensure occupational health and safety and did not prevent the attack on the personal rights of the plaintiff, thus it is obviousthat it acted contrary to the obligation to protect and observe the employee, and this situation gave the plaintiff the opportunity to terminate the employment contract for just cause, and the plaintiff terminated the employment contract for just cause’. The justification for the acceptance of the severance pay claim is in accordance with the law and the content of the file. As stated in the aforementioned reasoning, since it is understood that there is an attack on the personal rights of the plaintiff, it is erroneous to reject the plaintiff’s claim for non-pecuniary damages, while it should be accepted, and it required a reversal.” In its decision2012/9-1925 E., 2013/1407 K., the Court of Cassation General Assembly of Civil Chambers ruled as follows: ‘The plaintiff employee, due to the psychological harassment he was subjected to from the defendant employer, has the right to terminate the service contract for just cause, as well as the right to exercise his other legal rights by continuing to work (for example, to file a lawsuit for material and moral damages).In this case, it is necessary to accept that the psychological harassment occurred in the concrete case and an appropriate amount of moral damages should be awarded in favour of the plaintiff.’

1. INTERNATIONAL AND NATIONAL METHODS OF STRUGGLE

ILO has set international standards on this issue with the ‘Convention on the Elimination of Violence and Harassment in the World of Work’ No. 190 adopted in 2019. This convention envisages the development of comprehensive policies to prevent violence and harassment in the workplace. In Turkey, with the Prime Ministry Circular No. 2011/2 on ‘Prevention of Psychological Harassment (Mobbing) in Workplaces’[17 ] published in 2011, awareness has been raised and preventive measures have been taken. In addition, employers and employees are informed with the ‘Information Guide on Psychological Harassment (Mobbing) in Workplaces’[18 ] prepared by the Ministry of Labour and Social Security[19].

Research shows how widespread psychological and sexual violence is in the workplace and demonstrates the need to comply with international standards and implement effective methods of combating it.

1. GRC LEGAL COMMENT:

Sexual harassment and psychological harassment (mobbing) in the workplace are important problems that violate the rights of employees and negatively affect the working environment. Preventing and managing such problems requires both employers and employees to act responsibly. In this context, it is of great importance to take the following measures:

What Employers Can Do

• Determine Clear Policies: A zero-tolerance policy on sexual harassment and mobbing in the workplace should be established and these policies should be clearly communicated to all employees.
• Establish Complaint Mechanisms: A reliable complaint system based on confidentiality should be established where employees can report harassment.
• Organise Trainings: Employees should be regularly provided with awareness trainings on harassment and mobbing, and awareness on these issues should be increased.
• Managing Investigation Processes Seriously: Harassment complaints should be investigated quickly and effectively, and disciplinary action should be taken when necessary.
• Creating an Equal and Respectful Working Environment: A corporate culture that encourages equality and mutual respect among employees should be built.

What Employees Can Do:

• Know Your Rights: Employees should learn their legal rights against sexual harassment and mobbing and use them when necessary.
• Collect Evidence: Employees should be prepared for the necessary processes by documenting what happened in cases of sexual harassment or mobbing (such as messages, e-mails, witness statements).
• Do not hesitate to file a complaint: In case of harassment or mobbing, do not hesitate to report the situation to the authorised unit or employer representative.
• Seeking Psychological and Legal Support: Employees who are adversely affected by harassment should seek psychological support and legal remedies if necessary.
• Prioritising Respect in Communication: A communication approach based on respect and equality should be adopted among employees.

These steps should be seen as the key to a healthy and safe working environment in the workplace and care should be taken to ensure that they are operated even in the smallest units as a preventive mechanism.

[1]https://www.ilo.org/sites/default/files/wcmsp5/groups/public/@europe/@ro-geneva/@iloankara/documents/publication/wcms_883335.pdf [Access Date: 07.12.2024]

[ 2 ] https://cinsiyetesitligipolitikalari.org/cepd_folders/uploads/2022/10/AlevOzkazanc_is-yerinde-siddet.pdf [Date of Access: 07.12.2024]

[ 3 ] https://www.csgb.gov.tr/media/1328/i%C5%9Fyerlerinde-psikolojik-taciz-mobbing-bilgilendirme-rehberi-2017.pdf [Date of Access: 26.11.2024]

[4] Court of Cassation 22nd HD 2016/6932 E., 2017/31060 K.

[5] Court of Cassation General Assembly of Civil Chambers 2012/9-1925 E., 2013/1407 K.

[6] Court of Cassation 22nd HD, 22.01.2014, 2014/729 E. 2013/37918 K.

[7] Court of Cassation 22nd HD 2014/15971 E., 2014/19538 K.

[8] Court of Cassation General Assembly of Civil Chambers 2012/9-1925 E., 2013/1407 K.

[9] Lokmanoğlu, Salim Yunus, Psychological Harassment at the Workplace, pages 383-384.

[10] Court of Cassation 9th HD, 13.02.2019, 2015/35411 E. 2019/3553 K.

[11] https://sicil.mess.org.tr/Media/Uploads/sicil16-238-245.pdf [Date of Access: 26.11.2024]

[12] Court of Cassation 14th CD, 14.10.2014, 2013/1054 E., 2014/10982 K.

[13] Court of Cassation 14th CD, 17.06.2019, 2016/3168 E., 2019/10042 K.

[14] Court of Cassation 9th HD, 13.02.2019, 2015/35411 E., 2019/3553 K.

[15] Court of Cassation 9th HD, 12.10.2009, 2009/115 E., 2009/26672 K.

[16] Court of Cassation 9th HD, 10.02.2020, 2017/14071 E., 2020/1819 K.

[17] https://www.resmigazete.gov.tr/eskiler/2011/03/20110319-8.htm [Date of Access: 07.12.2024]

[18] https://www.csgb.gov.tr/media/1327/i%C5%9Fyerlerinde-psikolojik-taciz-mobbing-bilgilendirme-rehberi-2014.pdf [Date of Access: 07.12.2024]