Nowadays, mobbing is an unfortunate reality frequently presented at some workplaces, in both private and public sectors, affecting the physical and psychological health of workers as victims of their aggressors.
In El Salvador, there is no legal definition of mobbing, nor a regulation governing such issue in an explicit and specific form, except as provided in the “Special and Integral Law for a Life Free of Violence for Women”, which is insufficient as it will be discussed later on, still existing legal gaps in the Salvadoran regulatory framework.
The International Labor Organization (ILO) has defined “mobbing” as a psychological bullying form, consisting of a harassment through vindictive, cruel, or malicious actions, to humiliate or destabilize an individual or groups of employees. The foregoing means that situations of mobbing are supported of power relations, i.e., from positions of leadership, as well as similar labor ranks, or even both.
Following that same order of ideas, mobbing conducts by employers, as a strategy to dismiss an employee, could lead the latter to leave the working place, violating at the same time his(her) dignity and physical or moral integrity, which is a fundamental right and guarantee of any person, all recognized in the Constitution of the Republic of El Salvador.
In the Salvadoran legal framework, specifically on labor matters, it seems that there is no an adequate protection to worker´s rights from mobbing, making it difficult to prevent or denounce it and proceed before the authorities responsible for resolving the various conflicts between employees and employers.
It is important to clarify that in El Salvador, while Legislation on this issue is insufficient, it does not mean that there is no regulation with regard to mobbing, since there are certain legal provisions which, in general, include bullying conducts (characteristics of mobbing).
In particular, the Labor Code, Article 56, regarding “indirect or disguised dismissal”, establishes that any depressive or degrading fact to the employee (it is meant every situation of oppression or abuse made by an employer or its representatives), duly proven, can be estimated as a dismissal (termination of work contract with liability for the employer), which may result in a condemnation by a judge to the employer to pay the employee a compensation in the amount and form established by law.
Some examples that may be considered as depressive or degrading facts indicated on the previous Article are: when the employer, in the workplace, commits against the employee, acts that injured his(her) dignity, feelings or morals; ill-treatment by act or word, by the employer or head of the company against the employee or against his(her) spouse, ascendants, descendants or siblings, provided that the employer or the head is aware of such family ties, among others.
In addition, the “Special and Integral Law for a Life Free of Violence for Women” has come to boost mobbing regulation in our country, in a very specific way, clear example is that it has established a definition of this issue in Article 8, subparagraph “b”, providing that mobbing is: “““the action of physical or psychological hostility that in a systematic and recurrent form, is exerted on a woman by the reason of the fact of being a woman in the workplace, in order to isolate, intimidate or destroy the lines of communication of the person facing these facts, damaging her reputation, discredit her work or disrupt or impede the exercise of her duties”””.
In order to harmonize Labor Legislation with the before mentioned Law and the “Law of Equality, Equity and Eradication of Discrimination Against Women “, Article 29, Subparagraph “5)” of the Labor Code was recently reformed, in the sense of ensuring the prevention of discriminatory conduct and violence against women in the workplace. Therefore this Article has been amended as follows: “””Article 29.- Obligations of employers are:… 5) Give due consideration to male and female employees and to refrain from abuse by acts or words; sexual harassment, mobbing, and other types of violence for women, and sexist discrimination, referred to in the Law of Equality, Equity and Eradication of Discrimination Against Women”””.
Although this provision demonstrates some progress on mobbing regulation in El Salvador, it is still not adequate, since limiting mobbing circumstances only for women, excludes other people, such as minors and men, who are also exposed to this issue; being therefore still aspects to improve in the said provision.
It is important that Lawyers in El Salvador involve in promoting before the Legislative Assembly, reforms to the Labor Code or the creation of a special regulation with an adequate and effective treatment to the subject, which every day takes on greater force in the workplace, affecting the physical and psychological health of employees and, therefore Companies, which are the engine of the Salvadoran economy.
For more information about this matter and other labor issues, contact LatinAlliance El Salvador, Attorneys at Law, at the following email address: [email protected]
By: Mario Costa (Associate – Head of Corporate Department)