Workplace harassment — whether it takes the form of mobbing, sexual harassment or other infringements of personality — is a serious legal reality under Swiss law. The employer is legally required to protect their employees against such behaviour and to put an end to it as soon as it comes to their knowledge. PBM Avocats assists victims of harassment in Geneva and Lausanne in documenting the facts, pursuing amicable approaches and legal proceedings based on the Code of Obligations and the Gender Equality Act.
The Obligation to Protect Personality: Art. 328 CO
Art. 328 para. 1 CO requires the employer to protect and respect, in employment relationships, the worker's personality. In particular, the employer must ensure that workers are not sexually harassed and that they do not, where applicable, fall victim to such acts by their colleagues. This obligation has been interpreted broadly by the Federal Supreme Court: it covers not only harassment between staff members, but also behaviour by third parties (clients, suppliers) that the employer is able to prevent or stop.
Art. 328 para. 2 CO specifies that the employer must take the measures dictated by experience, applicable given the state of technology, and adapted to the conditions of the business, to the extent that the state of knowledge permits and what can reasonably be required of them, to protect the life, health and personal integrity of the worker. This duty of diligence is an obligation of means, but its scope is assessed rigorously by the courts. An employer who fails to respond to reports of harassment incurs contractual liability towards the injured worker (art. 97 CO).
Sexual Harassment: Art. 4 GEA and Employer Obligations
The Federal Act on Gender Equality (GEA) devotes art. 4 to defining and prohibiting sexual harassment. Sexual harassment is any unwanted behaviour of a sexual nature or any other behaviour based on sex that adversely affects the dignity of a person in the workplace. The definition is intentionally broad and covers verbal behaviour (comments, jokes, unwanted proposals), physical behaviour (imposed gestures or contact) and non-verbal behaviour (persistent staring, distribution of sexually explicit 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 a stop to the reported harassment, they are liable for the damage suffered by the worker, without the possibility of exoneration by proof of absence of fault. This no-fault liability constitutes a notable exception in Swiss law. The victim worker may claim damages covering the patrimonial loss suffered and compensation for moral harm, the amount of which is set by the court taking into account the gravity of the facts and circumstances.
Mobbing: Definition, Evidence and Remedies
Mobbing is defined by Federal Supreme Court case law as a succession of hostile remarks 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 workplace conflicts — which form part of normal professional life — by its systematic character, its duration and the intention or effect of harming the victim's personality.
Typical manifestations of mobbing include: exclusion from meetings and communications, systematic and unjustified criticism of work, exclusion from tasks or humiliating work overload, spreading malicious rumours, incessant and arbitrary changes of position or instructions, and repeated public humiliations. Medically, mobbing frequently leads to depression, anxiety disorders or burnout syndrome, documented by a psychiatrist or treating physician.
Legal Actions and Available Remedies
A victim of workplace harassment has several legal remedies available. On the civil side, they may act on the basis of art. 328 CO to obtain the cessation of infringements, damages covering economic 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 employer no-fault liability (art. 5 para. 3 GEA) and a partial reversal of the burden of proof.
Before initiating legal action, it is advisable to exhaust internal company channels (reporting to human resources, contact with a staff representative or internal mediator) and to meticulously document all the facts. Limitation periods are those of ordinary contractual law: ten years from the breach (art. 127 CO), subject to shorter periods applicable to certain salary claims. PBM Avocats accompanies you at every stage: assessment of the situation, strategic advice, drafting of formal notices and pleading before the Geneva and Vaud courts.
Frequently Asked Questions on 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 out a worker. It is sanctioned on the basis of art. 328 CO (obligation to protect personality) 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 that adversely affects the dignity of a person in the workplace, in particular threats, promises of advantage, the imposition of constraints or the exertion of pressure of any kind on a person in order to obtain sexual favours.
What obligations does the employer have with regard to preventing harassment?
Art. 328 CO requires the employer to protect the worker's personality and to take the necessary measures to ensure their physical and psychological health. With regard to sexual harassment, art. 5 para. 3 GEA requires the employer to take appropriate preventive measures — notably adopting an internal policy, training staff and establishing a reporting mechanism — and to put a stop to proven infringements. An employer who fails to fulfil these obligations may incur civil liability on the basis of arts. 97 and 328 CO, and the victim worker 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 proved before a tribunal?
Proving mobbing is difficult because the constituent acts often take place without direct witnesses and unfold over time. To maximise their chances, the victim should keep a precise, dated logbook recording each incident (date, location, persons present, words said or behaviour adopted), retain all relevant emails, messages or service notes, and seek testimony from colleagues who may have observed the facts. Medical certificates attesting to an impact on psychological health can constitute serious evidence. In proceedings based on the GEA, the burden of proof is lightened: it is sufficient to make discrimination plausible. PBM Avocats accompanies you in building the evidence file from the first signs.
Can I leave my job immediately in the event of serious harassment?
Yes, under certain conditions. If the harassment reaches a degree of severity such that it renders the continuation of the employment contract objectively intolerable, the worker may terminate the contract with immediate effect for good cause under art. 337 CO. In this case, if the termination is found to be justified by the tribunal, 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 promptly after 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 remedies are available in cases of harassment?
Certain acts constituting harassment may also constitute criminal offences. Coercion (art. 181 SCC), threats (art. 180 SCC), assault (art. 126 SCC), abuse of authority (art. 312 SCC for civil servants), 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 for putting a stop to unacceptable behaviour and for obtaining financial reparation through civil claims joined to the criminal proceedings. PBM Avocats, competent in both criminal law and employment law, can advise you on the advisability of such an approach.