Špadijer v Montenegro: ECtHR decides Article 8 contains laws against workplace bullying

The European Court of Human Rights has held that bullying at work can violate Article 8 of the European Convention on Human Rights, which guarantees the right to respect for private and family life. Where domestic mechanisms do not provide sufficient protections, they can violate a state’s positive obligations under Article 8.

The case concerned a Montenegrin dispute. The claimant, Ms Špadijer, worked as a prison guard at a women’s prison, where she was the Head of Shift. She reported five male colleagues for having ‘physical contact’ with two inmates on New Year’s Eve. Shortly after she reported the incident, she was threatened by another colleague and told to ‘prepare for anything’.

The male colleagues in question were ultimately disciplined, but that did not prevent a relentless campaign of harassment, abuse, and frankly egregious failings. Ms Špadijer’s windshield was smashed; she was demoted, spat on, insulted, and even assaulted. She made complaints – both to her employer and to the police – which were on the whole ignored despite the obvious signs of workplace bullying. A mediator in charge of managing the bullying allegations at work dismissed the matter, on the basis the conduct Ms Špadijer complained of was not ‘continuous’.

Ms Špadijer subsequently brought civil proceedings. She submitted evidence indicating she had ‘psychological problems related to conflict at work’ and that her capacity to function was ‘permanently reduced’ due to post-traumatic stress disorder and an adjustment disorder with episodes of reactive psychosis. The domestic courts decided the events did not amount to bullying because they lacked the necessary frequency. Incidents needed to be repeated over a longer period and continuous, for example with at least one incident a week for at least six months, to amount to bullying. Further, there had been no behaviour aimed at violating her dignity or integrity, causing fear, or creating a hostile, degrading, or insulting environment.

The ECtHR noted that the concept of private life is a broad term which includes a person’s physical and psychological integrity. Under Article 8, states have a duty to protect this integrity, and must maintain and apply an adequate legal framework to protect individuals, including in the context of work. The ECtHR did not accept the adequacy of the Montenegrin courts’ approach in this case. Demanding evidence of at least one incident of bullying a week over six months was not appropriate and prevented the court from considering bullying allegations on a case-by-case basis and considering the entire context. Accordingly, the domestic civil law mechanisms were implemented in such a way so as to violate the state’s positive obligations under Article 8.

This case highlights the potentially broad application of Article 8 in work-related contexts. However, the facts were clearly extreme, and the ECtHR was careful to note that not all complaints of bullying will reach the human rights threshold. They would need to have a serious effect on a victim’s physical or psychological integrity.

For our purposes, it also highlights the lack of a clear anti-bullying legal framework in the UK. Unless someone is being bullied because of a ‘protected characteristic’ under the Equality Act 2010 (such as their disability, race, sex, religion or belief etc.), meaning that a claim of harassment because of that protected characteristic may be available, they would need to rely on their employer’s obligations to provide a suitable working environment. So, if John is bullying Ron at work, because John ‘doesn’t like Ron’s face’ (and let’s say both John and Ron are both white males with no protected characteristics), Ron would need to prove John’s bullying is actually interfering with his work duties. This can create an unnecessary extra hurdle, which particularly for vulnerable people, can be difficult to get over.

We occasionally see potential proposals for a new anti-bullying framework in which individuals wouldn’t need to have a protected characteristic to pursue a claim under the Equality Act, but this remains a gap laws against workplace bullying in the UK.

This blog was written by Kendal Youngblood, Solicitor at didlaw