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Recent Court Rulings on Workplace Stress
The recent judgments and ordinances of the Court of Cassation have changed the term "Mobbing" to "Workplace Conflict Stress." Specifically, the Court of Cassation, Labor Section of the Supreme Court, annulled six appeals for mobbing, with reference to the specific issue of mobbing. These ordinances (19 January 2024, n. 2084; 31 January 2024, n. 2870; 12 February 2024, n. 3791; 12 February 2024, n. 3822; 12 February 2024, n. 3856; 16 February 2024, n. 4279), almost all pronounced by the same panel, have consolidated an important orientation within a month. This orientation affects workplace harassment and, more generally, conflicts within workplaces. The common denominator in all these rulings is that workers appeal against the non-acceptance of claims for damages for workplace harassment (i.e., mobbing) suffered at work by their employers. The complaints of the appellants already have a fundamental flaw due to the "monotone" language used to convey their reasons. This is the lexicon of "panmobbismo," a worn-out interpretative model that tends to force any workplace dysfunction (even a single disciplinary sanction or isolated aggression) into the "straightjacket" of mobbing. As a result, it has long since lost all credibility in Italian courtrooms. Relevant statistics were published in a recent study promoted by ILO, "Violence and Harassment in the World of Work. An Analysis of Italian Labor Jurisprudence," Rome, 2022, p. 7 ff., available at the following link: Violence and Harassment in the World of Work. An Analysis of Italian Labor Jurisprudence.
The response of the Court is unanimous: the scrutiny of the lower court cannot be limited solely to the failure to ascertain the objective or subjective element underlying the alleged mobbing (see Cass. 16 February 2024, n. 4279; Cass. 12 February 2024, n. 3822), leading to such an automatic and convenient rejection of the claim, which falls within the scope of contractual liability under Article 2087 of the Civil Code. On the contrary, in light of the much broader scope outlined by Article 2087 of the Civil Code (which aims to protect any prejudice to the health and moral personality of workers, see Cass. 16 February 2023, n. 4279; Cass. 12 February 2024, n. 3791; Cass. 12 February 2024, n. 3856), the lower court judge has the obligation to "assess and ascertain the employer's potential responsibility for having even negligently failed to prevent a stressful work environment from causing harm to the applicant's health" (see Cass. 12 February 2024, n. 3822; Cass. 16 February 2024, n. 4279; Cass. 12 February 2024, n. 3791). The change in perspective is clear, as it is directed towards the objective analysis of organizational and environmental factors through the "closing norm" of Article 2087 of the Civil Code, which allows the employer's responsibility for conduct that damages the employee's moral personality to be translated into the maintenance of work conditions that are stressogenic or not in compliance with ergonomic principles (see Cass. 19 January 2024, n. 2084; "contribution to the creation of a debilitating and anxiety-inducing environment" is mentioned in Cass. 19 January 2024, n. 2084).
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We are witnessing a well-established jurisprudential trend aimed at "expanding the compensatory protection in favor of the worker, condemning all those employer behaviors that are likely to create a 'stressogenic' work environment that is detrimental to the health and dignity of the worker, which are primary goods protected by the Constitution" (see Court of Auditors of Trentino-Alto Adige, judicial section, 16 January 2024, n. 1). The traditional formula, now almost "ossified" in many rulings of legitimacy (including the ordinances under review), states that "it is illegitimate for the employer to allow, even negligently, the maintenance of a stressogenic environment that is a source of harm to workers' health, along the lines of the employer's reckless responsibility who improperly tolerates the existence of a work condition that is detrimental to health, i.e., harmful, according to the paradigm of Article 2087 of the Civil Code (see Cass., 7 February 2023, n. 3692).
This translates, with regard to the specific area of labor conflict, into the relevance of "employer default in obligations of appropriateness in personnel management, already relevant under Article 2087 of the Civil Code," up to including "all behaviors, even if not unlawful in themselves, but such as to cause discomfort or stress, which manifest themselves in isolation or instead connect with other defaulting behaviors, contributing to exacerbate their effects and the seriousness of the damage to personality and health in the broad sense" (see Cass. 31 January 2024, n. 2870; see also Cass., 7 February 2023, n. 3692, with note by ROSIELLO, TAMBASCO, The SLC in the case law of legitimacy: new developments, in ISL, 5/2023, p. 247 ff.). The end result is a direct corollary of the principles enunciated, which also impacts the allocation of the burden of proof, now detached from the (almost penalistic) proof of the persecutory intent or the specific will to marginalize: "in case of ascertained non-existence of the hypothesis of mobbing in the work environment, the lower court judge must nevertheless ascertain whether, on the basis of the same facts supporting the claim, there is a hypothesis of employer responsibility for not having adopted all the measures that, according to the particularity of the work, experience, and technique, were possible and necessary to protect the physical integrity and moral personality of the worker; the burden of proof of the existence of the damage and the causal link between the work environment and the damage falls on the latter, while the burden of proving that all necessary measures have been adopted falls on the employer" (see Cass. 16 February 2024, n. 4279; Cass. 12 February 2024, n. 3791; Cass. 12 February 2024, n. 3822).
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Labor Conflict in the New Legitimacy Trend
The novelty of the ordinances under review, which leads to the assertion that they do not merely reiterate principles already established in the case law of legitimacy but instead contribute to a significant evolution of living law, is precisely the theme of labor conflict. It should be noted that until now, with the exception of some isolated judgments (see Forlì Tribunal, 6 February 2003, ext. Sorgi, in MAZZAMUTO, Mobbing, Milan, 2004, p. 180 ff.), the prevailing case law has always maintained the ontological distinction between conflict and harassment, categories that refer, respectively, to the bilateral or unilateral nature of the confrontation that developed in the work environment; if in conflict we have two "disputants," in harassment instead the protagonists are an aggressor and a victim (see Court of Appeal of Bologna, labor section, 28 April 2010, n. 107).
This distinction has led the merits and legitimacy case law, unanimously, to maintain that the persecutory type -and therefore employer liability under Article 2087 of the Civil Code- is not configurable in the case of labor conflict between colleagues, since interpersonal disputes and conflicts in the work environment are, in themselves, sufficient to exclude the persecutory intent, a fundamental element for integrating the mobbing type (inter alia, Cass. 3 June 2022, n. 17974; Cass., 2 December 2021, n. 38123; Cass., 4 March 2021, n. 6079; Cass., 29 December 2020, n. 29767; Cass., 11 December 2019, n. 32381; in the merits, see Turin Tribunal, labor section, 18 December 2002, ext. Sanlorenzo). In simpler terms, if there is no mobbing (therefore in the absence of a persecutory dynamic), labor conflict, even if culpably ignored by the employer and although it may be a source of health damage, does not matter at all for the purposes of liability under Article 2087 of the Civil Code.
This is true at least until Ordinances No. 37
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