Harassment in the workplace — whether it takes the form of mobbing, sexual harassment or other attacks on personality — is a serious legal reality in Swiss law. The employer is legally required to protect their employees against these behaviours and to put an end to them as soon as they come to their knowledge. PBM Avocats assists victims of harassment in Geneva and Lausanne in documenting the facts, amicable approaches and legal proceedings based on the Code of Obligations and the Gender Equality Act.
The Obligation to Protect Personality Rights: Art. 328 CO
Art. 328 para. 1 CO obliges the employer to protect and respect, in employment relationships, the personality of the employee. The employer must in particular ensure that employees are not sexually harassed and that they are not, as the case may be, victims of such acts by their colleagues. This obligation has been interpreted broadly by the Federal Supreme Court's case law: it covers not only harassment between staff members, but also behaviours by third parties (clients, suppliers) that the employer is in a position to prevent or stop.
Art. 328 para. 2 CO specifies that the employer must take measures required by experience, applicable in the state of the art, and adapted to the conditions of the business, insofar as the state of knowledge permits and it can reasonably be required of them, to protect the life, health and personal integrity of the employee. This duty of care is an obligation of means, but its scope is assessed rigorously by the courts. An employer who does not react to harassment reports engages their contractual liability towards the injured employee (art. 97 CO).
Sexual Harassment: Art. 4 GEA and Employer Obligations
The Federal Gender Equality Act (GEA) devotes its art. 4 to the definition and prohibition of sexual harassment. Sexual harassment is defined as any unwanted behaviour of a sexual nature or any other behaviour based on sex, which prejudices the dignity of persons in the workplace. The definition is intentionally broad and covers verbal behaviour (comments, jokes, unwanted propositions), physical behaviour (imposed gestures, contact) and non-verbal behaviour (insistent looks, distribution of sexual images).
Art. 5 para. 3 GEA provides for particular employer liability in cases of sexual harassment: if the employer does not take appropriate preventive measures and does not put an end to the reported harassment, they are liable for the damage suffered by the employee, without the possibility of exoneration by proving the absence of fault. This no-fault liability constitutes a notable exception in Swiss law. The victim employee may claim damages covering the financial loss suffered and compensation for moral harm, the amount of which is fixed by the court taking into account the gravity of the facts and circumstances.
Mobbing: Definition, Proof and Remedies
Mobbing is defined by the Federal Supreme Court's case law as a series of hostile words and/or actions, repeated frequently over a sufficiently long period, by which one or more individuals seek to isolate, marginalise or even exclude a person from their workplace. It is distinguished from simple work conflicts — which are part of normal professional life — by its systematic character, its duration and the intention or effect of attacking the victim's personality.
Typical manifestations of mobbing include: exclusion from meetings and communications, systematic and unjustified criticism of work, sidelining from tasks or humiliating work overload, spreading malicious rumours, constant and arbitrary changes of position or instructions, and repeated public humiliations. Medically, mobbing frequently leads to a depressive state, anxiety disorder or burnout, documented by a psychiatrist or treating physician.
Legal Actions and Available Remedies
A victim of workplace harassment has several legal avenues. On the civil side, they may act on the basis of art. 328 CO to obtain cessation of the violations, damages covering the financial loss (loss of salary, medical costs, retraining costs) and compensation for moral harm under art. 49 CO. In cases of sexual harassment, the GEA provides an additional basis with no-fault employer liability (art. 5 para. 3 GEA) and a partial reversal of the burden of proof.
Before initiating legal action, it is advisable to exhaust the company's internal channels (report to human resources, contact with a staff representative or internal mediator) and to meticulously document all the facts. The limitation periods are those of ordinary contract law: ten years from the breach (art. 127 CO), subject to shorter periods applicable to certain salary claims. PBM Avocats accompanies you at each stage: assessment of the situation, advice on strategy, drafting of formal notice letters and pleading before the Geneva and Vaud courts.
Frequently Asked Questions about Workplace Harassment
What is the difference between mobbing and sexual harassment?
Mobbing (or moral harassment) refers to a process of deliberate and systematic degradation of working conditions by a superior or colleagues, aimed at isolating, humiliating or forcing an employee out. It is sanctioned on the basis of art. 328 CO (obligation to protect personality rights) and art. 49 CO (moral damages). Sexual harassment, on the other hand, is expressly defined in art. 4 of the Gender Equality Act (GEA) as any unwanted behaviour of a sexual nature or any other behaviour based on sex, which prejudices the dignity of persons in the workplace, in particular by making threats, promising advantages, imposing constraints or exerting pressure of any kind on a person with the aim of obtaining sexual favours.
What obligations does the employer have regarding harassment prevention?
Art. 328 CO obliges the employer to protect the personality of the employee and to take the necessary measures to ensure their physical and psychological health. As regards sexual harassment, art. 5 para. 3 GEA obliges the employer to take appropriate preventive measures — including adopting an internal policy, staff training and a reporting mechanism — and to put an end to proven violations. An employer who fails in these obligations may have their civil liability engaged on the basis of arts. 97 and 328 CO, and the victim employee may claim damages and compensation for moral harm without having to prove the employer's fault in proceedings based on the GEA.
How can mobbing be proven before a tribunal?
Proving mobbing is difficult because the constitutive acts often take place without direct witnesses and unfold over time. To maximise chances, the victim must keep a precise and dated diary recording each incident (date, place, persons present, words used or behaviour adopted), retain all relevant emails, messages or internal memos, and solicit testimonials from colleagues who may have observed the facts. Medical certificates attesting to an impact on psychological health may constitute serious evidence. In proceedings based on the GEA, the burden of proof is reduced: it suffices to make the discrimination credible. PBM Avocats accompanies you in assembling the evidence file from the first signs.
Can I immediately leave my job in the event of serious harassment?
Yes, under certain conditions. If the harassment reaches such a severity that it makes the continuation of the employment contract objectively intolerable, the employee may terminate the contract with immediate effect for good cause under art. 337 CO. In this case, if the termination is deemed justified by the court, the employer will be required to pay damages corresponding to the salary until the end of the ordinary notice period, as well as compensation for moral harm. However, immediate termination for good cause must be pronounced quickly after the occurrence of the triggering events, as too long a delay risks being interpreted as tacit acceptance of the situation. PBM Avocats assesses with you the advisability of this approach before any decision.
What criminal law avenues exist in the case of harassment?
Certain acts constituting harassment may also realise criminal offences. Coercion (art. 181 SCC), threats (art. 180 SCC), physical assault (art. 126 SCC), abuse of authority (art. 312 SCC for public officials), pornography or sexual acts committed under pressure may justify a criminal complaint. Discrimination on grounds of sex or sexual orientation may fall under art. 261bis SCC. Filing a criminal complaint can be an effective lever to put an end to unacceptable conduct and to obtain financial redress via civil claims joined to the criminal proceedings. PBM Avocats, competent in criminal law as well as employment law, can advise you on the advisability of such a step.