Workplace Harassment (Mobbing) in Spain: How to Prove It and Your Legal Options

# Workplace Harassment (Mobbing) in Spain: A Complete Legal Guide

Workplace harassment, or mobbing, is one of the most difficult forms of workplace violence to prove and one of the most frequently litigated before the Tribunales de Instancia de lo Social (Labour Courts). Its legal treatment in Spain does not stem from a single specific statute defining it, but rather from the combined application of the Estatuto de los Trabajadores (ET) (Workers' Statute), the Ley 31/1995 de Prevención de Riesgos Laborales (LPRL) (Occupational Health and Safety Act), the Código Penal (Criminal Code), and the doctrine of the Tribunal Supremo (Supreme Court).

Concept and Elements of Mobbing

Mobbing may be defined as a pattern of hostile, humiliating, intimidating, or degrading behaviour, carried out in a systematic and prolonged manner by an employer or co-workers, with the aim or effect of harming the worker's dignity, undermining their working conditions, or creating a hostile work environment.

The essential elements established by the Tribunal Supremo (Supreme Court) (among others, STS 26 February 2013) are:

1. Repetition: a single isolated incident is insufficient. The Supreme Court requires systematic and sustained conduct.
2. Hostility: the conduct must be objectively humiliating or degrading.
3. Purpose or result: the intent to harm the worker, or the objective outcome of creating a hostile environment.
4. Temporal element: legal doctrine refers to a minimum duration of 6 months (the Leymann criterion), although Spanish courts do not apply a rigid minimum threshold.

What does not constitute mobbing: the legitimate exercise of managerial authority (issuing instructions, evaluating performance, imposing disciplinary sanctions), even if the worker perceives it as unfair.

Types of Workplace Harassment

• Downward harassment (bossing): from a superior to a subordinate. The most common form.
• Horizontal harassment: between colleagues at the same hierarchical level.
• Upward harassment: from subordinates toward a superior (uncommon).
• Sexual harassment: involving sexual connotations. Subject to specific regulation under Art. 184 of the Código Penal and the ET.
• Discriminatory harassment: linked to a protected characteristic (sex, origin, religion, disability, age, etc.).

Conduct Constituting Mobbing

The most common types of conduct that courts have recognised as mobbing include:

• Assigning impossible, pointless, or degrading tasks.
• Systematically excluding the worker from meetings, projects, and communications.
• Public criticism and humiliation in front of colleagues.
• Withholding information necessary to perform the job.
• Physical or social isolation.
• Rumour-spreading and defamation.
• Excessive or invasive surveillance.
• Arbitrary and detrimental changes to job role, working hours, or conditions.

Proving Mobbing

Proof is the primary challenge in harassment proceedings. Harassment is rarely documented, is typically denied by the harasser, and witnesses often remain silent out of fear of retaliation.

Evidence Accepted by the Courts

• Witnesses: colleagues who have observed the conduct in question. The credibility of witnesses is assessed judicially.
• Emails and messages: screenshots, corporate chat logs, or WhatsApp messages. These must be obtained lawfully.
• Medical records and psychological reports: establishing the causal link between the workplace conduct and the psychological harm suffered is essential.
• Inspección de Trabajo (Labour Inspectorate; ITSS) report: where a complaint has been filed with the ITSS, the inspection report may serve as evidence for the prosecution.
• Incident log: keeping a diary of events with dates, times, locations, and witnesses present is one of the most highly valued forms of evidence.
• Internal company policy: where a harassment protocol exists but has not been applied, this may demonstrate employer negligence.

Reversal of the Burden of Proof

In proceedings based on the violation of fundamental rights (dignity, moral integrity, Art. 18 of the Spanish Constitution), Art. 96.1 of the Ley 36/2011, de la Jurisdicción Social (LRJS) (Labour Procedure Act) provides that, once sufficient evidence of harassment has been presented, the burden of proof shifts to the employer or harasser to demonstrate that their conduct was objectively and reasonably justified.

Available Legal Actions

1. Labour Claim for Harassment

• Fundamental rights protection claim (Arts. 177–184 LRJS): expedited procedure, possibility of requesting interim measures, compensation for moral damages.
• Termination of contract with compensation (Art. 50 ET): where the employer's conduct constitutes a serious breach, the worker may seek termination of the employment contract and receive compensation equivalent to that awarded for unfair dismissal (33 days' pay per year of service, up to a máximum of 24 monthly payments).

2. Criminal Complaint

Workplace harassment may constitute the criminal offence of harassment (Art. 173.1 of the Código Penal, carrying sentences of 6 months to 2 years' imprisonment), the offence of degrading treatment, or an offence against moral integrity. The complaint is filed before the Tribunal de Instancia de Instrucción (Investigating Court) or the Fiscalía (Public Prosecutor's Office). Criminal and labour proceedings may run concurrently.

3. Complaint to the Labour Inspectorate (ITSS)

The complaint is confidential and free of charge. The ITSS may require the company to adopt preventive measures, initiate disciplinary proceedings, and issue a formal infraction report. Fines range from €2,046 to €98,896 (serious infraction scale, Art. 8.13 LISOS, the Act on Infringements and Penalties in the Social Order).

4. Claim for Administrative Liability

Where the harassment is carried out by a civil servant or within a public administration context, a claim for patrimonial liability may be brought against the Administration before the contentious-administrative courts.

Compensation for Damages

The worker may claim compensation for:

• Moral damages: typically between €6,000 and €30,000, depending on the severity and duration of the harassment.
• Documented psychological harm: expert reports from a psychologist or psychiatrist.
• Loss of earnings: financial losses resulting from sick leave, loss of employment, etc.
• Medical and therapeutic expenses.

Harassment Prevention Protocol

Since RD 901/2020 (Royal Decree 901/2020) and the Ley Orgánica 3/2007 (Organic Act on Equality), companies with more than 50 employees are required to draw up and negotiate an Equality Plan (Plan de Igualdad), which must include measures to prevent sexual harassment and gender-based harassment. Many companies also have workplace harassment protocols in place, and failure to implement them may aggravate the employer's liability.

Conclusion

When facing a mobbing situation, the recommended course of action is: document all incidents from the outset, seek medical attention to establish a record of the psychological consequences, notify Human Resources or the works council in writing, and consult a specialist lawyer before making any significant employment decisión (such as resigning or going on sick leave).