INDEX

1. Introduction ...................................................................................................................... 2
2. The field and definition of psychosocial risks. ................................................................. 3
3. The European Union's Regulation and Soft-Law on Psychosocial Risks ........................ 6
3.1. The European Commission's actions ......................................................................... 6
a) Equal Treatment Directives .................................................................................... 6
b) The Working Time Directive 2003/88 ......................................................................... 7
c) European occupational safety and health strategies ..................................................... 7
d) The Communication from the European Commission of 10 January 2017 ................. 8
f) The Employers' Guide on Workplace Stress ................................................................ 9
g) The SLIC Guidelines on Diversity and Psychosocial Risks ........................................ 9
3.2. European Social Dialogue ....................................................................................... 10
a) The Framework Agreement on Workplace Stress ............................................... 10
b) The Framework Agreement on Violence and Harassment at Work (2007) ......... 12
c) The Multisectoral Guidelines on Violence and Harassment by Third Parties
at Work (2010) ............................................................................................................... 13
d) Directive 2010/32 on risks arising from the use of sharps in the healthcare
sector 13
4. Member States' national legislation on psychosocial risks............................................. 14
4.1. States with minimum regulation and implicit recognition ....................................... 14
4.2. States with partial regulation usually supported by non-binding or Soft-Law
standards ............................................................................................................................. 16
4.3. States with specific regulations on psychosocial risks ............................................ 17
a) Belgium ................................................................................................................ 17
b) Sweden ................................................................................................................. 18
5. ILO Convention 190 and Recommendation 206 on Violence and Harassment at
Work ....................................................................................................................................... 18
a) The prevention of psychosocial risks. .................................................................. 18
b) Corporate policies on violence and harassment ................................................... 20
6. Critical issues in the management of psychosocial risks................................................ 21
a) Confluence of psychosocial risks with labour law and collective bargaining ..... 21
b) Overlap with equality and diversity plans and disengagement policies............... 22
c) Psychosocial risk management in sectors and companies with high mobility
of people ......................................................................................................................... 22
7. Conclusion ...................................................................................................................... 23
European Legislation on Psychosocial Risks Laura Rubio González

1. Introduction
The results of the third European Survey of Enterprises on New and Emerging Risks
(ESENER) conducted during 20191, underline that the main concerns in European
companies are musculoskeletal disorders and psychosocial risks. Regarding the
latter, having to deal with difficult customers, pupils and patients is among the most
frequent risk factors identified in the EU-28 (61%), followed by time pressure
(44%). The data suggest that the health and social work sector and the education
sector are more likely to report the presence of psychosocial risk factors in their
workplaces. In 2014, the European Agency for Safety and Health published a report
on the prevalence and prevention strategies of psychosocial risks in which it was
estimated that 25% of workers had experienced work-related stress during all or
most of their working time. Eighty per cent of managers expressed concern about
work-related stress.

In this document we will move on to analyse their legal regulation in four different
areas:
 I will start with a brief introduction on the definition and scope of
psychosocial risks
 Next up, the area of institutions and social dialogue in the European
Union, which is where a more advanced level of soft law has been
achieved.
 The next section will describe the legislation of the States in general and
some of them in particular.
 I then go on to analyse the content relating to psychosocial risks in the
new and recent international legislation of ILO Convention 190 and
Recommendation 206, which has interestingly taken the lead in
establishing for the first time in an international legal standard a
complete and thorough regulation of one of the most recognised
psychosocial risks such as violence and harassment at work.
 In the concluding section, I will discuss the most heated debates and
controversial aspects of the topic.

1
OSHA (2019) European Agency for Safety and Health at Work. EUROPEAN RISK OBSERVATORY
REPORT. European Survey of Enterprises on New and Emerging Risk; 2019

2
European Legislation on Psychosocial Risks Laura Rubio González

2. The field and definition of psychosocial risks.

The concept of "psychosocial" in general refers to the interactions that take place
between the individual and society. In fact, the term "psychosocial risks" is used in
other disciplines for the management of the psychological health of individuals
affected by humanitarian catastrophes (floods, attacks, earthquakes, etc.) or in the
school environment for the management and control of interactions between
students and their entire environment, both school, social and family.

In 1984 an ILO2 report for the first time defined psychosocial risks at work as "the
interactions between work, its environment, job satisfaction and organisational
conditions on the one hand, and on the other hand, the worker's capabilities, needs,
culture and personal situation outside work, all of which, through perceptions and
experiences, can influence health, performance and job satisfaction".

In the EU Member States, psychosocial risks are included in labour law and
occupational risk prevention laws that restrict their field to all interactions between
individuals that take place in the work environment. The explanation for this
restriction is that in labour law, the prevention of occupational risks is considered a
responsibility of the company and therefore it can only affect the field of its
management and supervisory powers. Everything that is outside this sphere belongs
to the workers' privacy and intimacy and is therefore off-limits to the company's
intervention, without prejudice to the strictly voluntary participation of each
employee in the out-of-work activities that the company may organise apart from
the workplace and the working day, or the health promotion actions of the health
authorities for the general population.

However, within this conception restricted to the world of work, there are also two
different versions of these risks, depending on their origin or their consequences.
The conception that is most widely used in Europe is the one that defines
psychosocial risks by their origin, as the probability of suffering damage to health as
a consequence of the ways or forms of organising work and the social or

2
Psychosocial factors at work: Recognition and control. Report of the Joint ILO/WHO Committee on
Occupational Health Ninth Session Geneva, 18-24 September 1984.
https://www.who.int/occupational_health/publications/ILO_WHO_1984_report_of_the_joint_committee.
pdf

3
European Legislation on Psychosocial Risks Laura Rubio González

interpersonal relationships that are developed in the working environment. In line

with this approach, in the work environment there are certain factors or working
conditions such as workload or demand, the degree of autonomy to make decisions,
working time, social or interpersonal relationships, etc., which are defined as
psychosocial factors. These factors, under certain circumstances, become
psychosocial risk factors with potential harmful effects on health. For example, if
the workload is greater than can be carried out during the normal working day, if
workers do not receive support from managers and coworkers in the face of
difficulties that arise during the performance of their tasks or if interpersonal
communication at work is poor or non-existent.

The assessment process consists of identifying whether there are psychosocial

factors that have turned into psychosocial risk factors and, if so, adopting the
necessary measures to return to a situation that is considered normal and balanced in
organisational and social relations in the company.

In any case, the damage that can be caused by these situations could be of any type,
whether physical disorders (such as cardiovascular or digestive disorders derived
from situations of tension or stress), psychological disorders (which are the most
frequent and common and which can range from mere adaptive disorders to
psychotic illnesses) or behavioural or social disorders (such as, for example,
addiction to drugs, tobacco or alcohol as a consequence of work-related stress or
situations of violence and harassment at work).

But in other major countries, such as Canada and Australia, there is another
conception that defines these risks by their outcome, as psychological risks to the
mental health of workers. In this case, these risks would include all factors that can
cause work-related stress or damage to psychological or mental health at work3.

This dual conception can be a barrier to the realisation of international standards.

The second conception, which refers to psychological risks, would involve mental
disorders caused by exposure to chemical agents4, those caused by physical agents

3
CAN/CSA-Z1003-13/BNQ 9700-803/2013 - Psychological Health and Safety in the Workplace.
4
Work and Mental Health, Irene L.D. Houtman and Michiel A.J. Kompier
http://www.insht.es/InshtWeb/Contenidos/Documentacion/TextosOnline/EnciclopediaOIT/tomo1/5.pdf

4
European Legislation on Psychosocial Risks Laura Rubio González

such as temperature, noise or vibrations, those due to poorly designed job tasks or
inadequate functioning of work equipment5 which can also cause work-related
stress, or even those due to the human factors of each individual and their personal
tendency to suffer from psychological disorders.

In order to achieve a common understanding between the two, some manuals or

guides have been written in Europe, such as PRIMA-EF, which includes as
psychosocial risk factors those related to the work environment and work
equipment, such as excessive noise, lack of lighting, lack of maintenance of
machinery, etc.

I consider, however, that this effort to include psychological risks within

psychosocial risks arises, in fact, from the lack of attention paid to the monitoring of
mental health in the workplace. In practice, the so-called psychological risks can
only be included in the medical surveillance of workers' health. A risk is the
probability of suffering harm and therefore cannot be defined or classified by its
outcome but by its causal origin.

Another point that should also be considered is the inappropriateness of the term
"psychosocial risks" itself, since it refers to the relationships and interactions of the
individual with his or her social environment, and in the predominant conception of
labour law in EU countries the individual is not the target of analysis, but only the
organisation and social relations. It would be more appropriate to call them social
and organisational risks, as we will see in the Swedish regulation of 2015.

The most universally recognised psychosocial risks are work-related stress and
violence and harassment at work. The terms violence and harassment appear
together and inseparable in ILO Convention 190. Fatigue could also be included as
a psychosocial risk when it derives directly from the organization of working time,
but there is not yet sufficient consensus on this assessment.

They are all often interconnected and often causal of each other: stress can cause
violence and harassment, and violence and harassment cause stress. In any case,

5
The European Agency and PRIMA EF classifications list inadequate equipment, poor environmental
conditions, lack of space and lighting, and excessive noise as psychosocial factors.

5
European Legislation on Psychosocial Risks Laura Rubio González

stress, violence and harassment are not considered as damage to health but as
"psychosocial risks" as they are the immediate and direct cause of such damage.

The entire process of handling these risks would deal with three types of processing
and three types of action to be carried out by enterprises:

 Firstly, the transformation of psychosocial factors into psychosocial risk

factors. In this case, the instrument is the assessment of psychosocial
risks, the aim of which is to detect this transformation in order to apply
the appropriate measures to return to a situation of normality and absence
of risk.
 The second would be the transformation of psychosocial risk factors into
psychosocial risks in the form of stress, violence or harassment. In this
case, company policies designed to intervene and address these situations
early and minimise or alleviate the damage to the health of those affected
should be put in place.
 And the third would be the transformation of stress, violence or
harassment into psychological, physical or behavioural health damage
healthy conditions.
Therefore, each of these changes would correspond to a different type of
intervention by the company at the primary, secondary or tertiary level.

3. The European Union's Regulation and Soft-Law on Psychosocial Risks

3.1.The European Commission's actions
a) Equal Treatment Directives
The first step taken by the European institutions on psychosocial risks was the
adoption of Directives regulating harassment as discriminatory conduct
contrary to the right to equal treatment.
Equality and non-discrimination is one of the fundamental values of the Treaty
on European Union (Art. 2, 3.2, 9 and 21) and of the Treaty on the Functioning
of the European Union (Art. 8, 153(i), 157 and Declaration No. 19 of the
Annex) and the novelty at that time was the extension of protection from
discriminatory conduct to harassment and indirect discrimination.
These were, in particular, Directive 2000/78 establishing a general framework
for equal treatment in employment and occupation which established a first

6
European Legislation on Psychosocial Risks Laura Rubio González

concept of harassment on discriminatory grounds and Directive 2002/73 which

was subsequently consolidated into Directive 2006/54 on the implementation
of the principle of equal opportunities and equal treatment of men and women
in matters of employment and occupation which established definitions of
sexual harassment and harassment on grounds of sex.
These Directives did not, by contrast, specifically address the preventive
aspects and obligations of companies with regard to discriminatory harassment
behaviour, but only, and quite generally, with regard to discrimination.
b) The Working Time Directive 2003/88
Later on, this Directive on Working Time, which is one of the most recognised
psychosocial factors, was introduced to replace Directive 93/104/EC, which
had already caused some controversy due to its inclusion in the field of health
and safety at work.
Both directives focus more on rest time than on working time and this would
be the main distinction between the rules on prevention and those governing
employment relations in this area.
Their content, however, does not take into account the principles of preventive
management of the Framework Directive 89/391/EEC, in particular the need to
carry out a prior risk assessment, particularly in this case a psychosocial risk
assessment.
Its implementation into national legislation has been done in many Member
States in the legal rules governing labour relations and not in those regulating
risk prevention.
c) European occupational safety and health strategies
The origin of psychosocial risks in the field of European Union policies on
safety and health at work was the Community Strategy for the Prevention and
Management of Psychosocial Risks in the European Union for the period 2002
and 2006 in which "psychological and social risks" are mentioned on several
occasions among the then named "emerging risks" that should be integrated
into preventive management.
These intentions were not translated into practice due to the lack of consensus
among the Member States and already in the 2007-2012 Strategy, where
psychosocial risks were explicitly mentioned, the objectives of the Union were
reduced to "Research priorities should include, in particular, psychosocial

7
European Legislation on Psychosocial Risks Laura Rubio González

issues" and that within health promotion "The workplace can be a privileged
place for the prevention of psychological disorders and for the promotion of
better mental health".
d) The Communication from the European Commission of 10 January 2017
During the years of the crisis there was a halt in all initiatives of any kind in
occupational safety and health and so we arrive at the latest stage, marked by
the contents of the European Commission's Communication of 10 January
2017 on "Safer and healthier work for all - Modernising EU legislation and
policies on health and safety at work"6, which set out the principles for action
by Member States on occupational safety and health policies for the years to
come.
After the slowdown during the years of the economic crisis in the production
of standards and guidelines in this area, it was decided, on the one hand, that
new standards were needed in the fight against occupational cancer and
hazardous substances, some of which have already come to light7.
On the other hand, it was decided to develop forms of soft-law (guides and
guidelines) to help companies and labour inspectors to act on the so-called
emerging risks (psychosocial and musculoskeletal disorders) in order to ensure
that the management of occupational risk prevention takes into account equal
treatment and diversity, in particular on grounds of gender, age, ethnic origin
and disability.
Some specific Directives on health and safety at work (such as the Display
Screen Directive) contain provisions indirectly related to the prevention of
psychosocial risks. The European Framework Agreement on work-related
stress adopted by the social partners underlines the importance of the
Framework Directive. The European Agency for Safety and Health at Work
regularly carries out awareness-raising actions and, as part of a European
campaign on stress and psychosocial risks in 2014-2015, published a practical

6
COM (2017) 12 https://ec.europa.eu/transparency/regdoc/rep/1/2017/ES/COM-2017-12-F1-ES-MAIN-
PART-1.PDF
7
DIRECTIVE (EU) 2017/2398 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12
December 2017 modifying Directive 2004/37/EC on the protection of workers from the risks related to
exposure to carcinogens or mutagens at work was adopted and the Commission is preparing new
directives on other agents.

8
European Legislation on Psychosocial Risks Laura Rubio González

e-guide to manage psychosocial risks, responding to the needs of employers

and workers in small enterprises.
Different approaches exist in different Member States. Some do not explicitly
mention psychosocial risks in their occupational health and safety legislation,
while others emphasise the need to consider them as part of occupational
health and safety. Some require the assessment of psychosocial risks, and a
few advocate the involvement of an expert.
Member States also have non-regulatory approaches (tripartite organs,
guidance, awareness, management standards, etc.).
To improve the protection of workers in practice, it is necessary to raise
employers' awareness and provide them with new guides and tools. In the
guidance document adopted today, the Commission clarifies that, according to
existing provisions at EU level, employers are obliged to protect workers
against psychosocial risks and that these risks should be duly taken into
account in the risk assessment process. The document provides concrete non-
binding resources and tools for employers to effectively address psychosocial
risks in risk assessment. The Commission will work with the European
Agency for Safety and Health at Work and the Advisory Committee for Safety
and Health at Work to identify, promote and disseminate good practice and
will mandate the Senior Labour Inspectors' Committee to develop a procedure
to assess the quality of risk assessments and risk management measures with
regard to psychosocial risks".
f) The Employers' Guide on Workplace Stress
Following the guidelines of the previous Communication, the European
Commission adopted in 2017 a Guidance for Employers on these aspects8.
While the Communication used the term psychosocial risks unambiguously,
the Guidance again restricts the scope to Workplace Stress in the absence of a
full and general consensus on the inclusion of Violence and Harassment in the
prevention of occupational risks by some States, in particular the UK.
g) The SLIC Guidelines on Diversity and Psychosocial Risks
The European Senior Labour Inspectors' Committee (SLIC) was mandated to
develop a procedure to assess the quality of risk assessments and risk

8
https://www.scmst.es/union-europea-guia-practica-empresarios-seguridad-salud-trabajo/

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European Legislation on Psychosocial Risks Laura Rubio González

management measures with regard to psychosocial risks, ergonomic risks and

to formulate principles to assist labour inspectors in assessing risks with regard
to equality and diversity.
As a consequence of the latter, in 2018 SLIC adopted "Principles of action for
labour inspectors with regard to diversity, in particular with regard to age,
gender and other demographic characteristics9" and guidelines for assessing
the quality of risk assessments and prevention management with regard to the
prevention of psychosocial risks10 and musculoskeletal disorders.
3.2.European Social Dialogue
Around 2003, it was decided by the European Union institutions that before
any legislative action, agreements between the social partners should be
developed in advance within the European Social Dialogue. This led to the
framework agreements on work-related stress (2004), violence and harassment
(2007) and third party violence (2010) which we will discuss below.
For example, in Spain, the first and second agreements were incorporated into
the Collective Bargaining Accords of 2005 and 2008 with purely contractual
value. As a consequence, these agreements have never had in our legal system
the normative value of general effectiveness that is typical of statutory
collective agreements, despite the fact that the signatory institutions had the
legitimacy and sufficient majority to do so.
The most relevant contents of these agreements are outlined in this section:

a) The Framework Agreement on Workplace Stress

Paragraphs 4 and 5 of this Framework Agreement have been of particular legal
relevance in determining the regime of responsibilities of companies with
regard to psychosocial risks.
Concretely, paragraph 4 indicated:
"If a work-related stress problem is identified, measures must be taken to
prevent, eliminate or reduce it. The determination of appropriate measures is

9
https://www.ispettorato.gov.it/it-it/Attivita/Documents/Attivita-internazionale/Principles-for-abour-
inspectors-on-diversity-sensitive-RA.pdf
10
https://www.ispettorato.gov.it/it-it/Attivita/Documents/Attivita-internazionale/Guide-for-assessing-the-
quality-of-RA-and-risk-management-measures-with-regard-to-prevention-of-psychosocial-risks.pdf

10
European Legislation on Psychosocial Risks Laura Rubio González

the responsibility of the employer. These measures shall be implemented with

the participation and collaboration of the workers and/or their representatives".
The Agreement starts from a principle that will be essential in determining the
responsibility of companies for stress and psychosocial risks in general. The
law or the regulation cannot determine the measures to be adopted and these
can only be specified according to the circumstances of each situation and the
means available.
Thus, the company is obliged to act when it becomes aware of the risk of
stress and, therefore, the simple omission of any type of action aimed at
preventing, reducing or eliminating it determines its liability.
Paragraph 5 went on to indicate the "Responsibilities of employers and
workers" stating that:
Under Framework Directive 89/391, all employers have a legal obligation to
protect the safety and health of workers. This obligation applies equally to
work-related stress problems insofar as they present a risk to health and safety.
All workers have a general duty to respect the protective measures defined by
the employer.
The specific value of this section is its reference to Art. 5 of the Framework
Directive on safety and health at work and with it to the legal rules
implemented.
This all means that there is a consensus among the European social partners on
the inclusion of work-related stress in occupational health and safety. As we
have already pointed out, there has not yet been the same degree of agreement
on violence and harassment.
The other point of special legal interest in this Agreement is that it set a
precedent with regard to the distinction between psychosocial risk prevention
management and company policies, which we will later see embodied in ILO
Convention 190.
This agreement states that:
Problems related to work-related stress can be addressed within the framework
of a general assessment of occupational risks, by defining a differentiated
stress policy and/or by specific measures targeting the identified stress factors.
However, this distinction between preventive management and company
policies was not yet fully outlined in the Agreement. Company policies,

11
European Legislation on Psychosocial Risks Laura Rubio González

according to the text of the Agreement, can be a complement to preventive

management, but also an alternative to it. ILO Convention 190 will make it
clearer that the two are compatible and complementary.
b) The Framework Agreement on Violence and Harassment at Work
(2007)
This second agreement is the main predecessor of ILO Convention 190 in
terms of its name and coverage, although its definitions are more complete and
precise than those of the Convention. It was stated, in particular in paragraph 3:
Harassment occurs when one or more workers or managers are repeatedly and
deliberately mistreated, threatened or humiliated in work-related situations.
Violence occurs when one or more workers or managers are assaulted in work-
related situations.
Harassment and violence can come from one or more managers or workers,
with the purpose or effect of harming the victim's dignity, damaging the
victim's health or creating a hostile working environment.
Paragraph 4, on the meanwhile, set out some company policies without
mentioning or addressing this issue in the context of occupational risk
management. The explanation, as we have already pointed out, was the lack of
consensus among the social partners and even the States in this respect.
In particular, it was stated in the Agreement that one measure is to "Raise the
awareness of all staff and provide them with appropriate training", which is one
of the typical contents of Company Policies in this area.
Another typical Enterprise Policy measure that is also included in the
Framework Agreement is the one concerning procedures or protocols for
handling complaints within the company. This is what the Agreement says:
Companies must draw up a statement that they will not tolerate harassment and
violence. This statement shall specify the procedures to be followed in the
event of incidents.
These procedures may include an informal phase in which a person trusted by
both management and workers offers help and advice. Appropriate procedures
may already exist to deal with harassment and violence.
A process is appropriate if it takes into account, among other things, the
following elements:

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European Legislation on Psychosocial Risks Laura Rubio González

 It is in the interest of all parties to proceed with the discretion necessary

to protect the dignity and privacy of all.
 No information should be disclosed to uninvolved parties.
 Complaints should be investigated and dealt with without unjustifiable
delay.
 All parties involved should be given a fair hearing and fair treatment.
 Allegations should be supported by detailed information.
 False accusations should not be tolerated and may lead to disciplinary
action.
 Outside assistance may be helpful.
If it is established that harassment or violence has taken place, appropriate
action will be taken against the perpetrators. This may range from disciplinary
action to dismissal.
Victims will receive support and, if necessary, reintegration assistance.
In consultation with workers or their representatives, employers shall establish,
review and monitor these procedures to ensure that they are effective both in
preventing problems and in dealing with them when they arise.
Where appropriate, the provisions of this chapter may apply to cases of
external violence.
c) The Multisectoral Guidelines on Violence and Harassment by
Third Parties at Work (2010)
Finally, there are the Multisectoral Guidelines on Third Party Violence, which
do not have the same status as the previous ones and were not transposed into
the collective bargaining framework of States even with a non-binding value.
The main legal value of these Guidelines resides in the fact that they clearly
frame third-party violence and harassment as part of the management of
occupational risk prevention, in distinction to the previous agreement of 2007.
d) Directive 2010/32 on risks arising from the use of sharps in the
healthcare sector
This Directive is included in this section because it was the result of a prior
agreement between the European social partners.

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European Legislation on Psychosocial Risks Laura Rubio González

The new aspect that we are interested in highlighting is that this Directive
expressly mentions the management of psychosocial risks within the general
principles of preventive action in companies.
It was transposed into Spanish law by Order ESS/1451/2013 and it mentions
psychosocial risks on several occasions in the same terms as the Directive.
However, it should also be noted that only in a review of the transposition of
this Directive in the other EU Member States is there an express mention of
these risks in very few of them.
4. Member States' national legislation on psychosocial risks
In the previous subsections I have summarised the EU and ILO standards on
psychosocial risks. It is now time for a brief analysis of what the Member
States have done in their national legislation, with a threefold classification
according to the degree of intervention.
4.1.States with minimum regulation and implicit recognition
Firstly, there are the countries that have opted for minimal intervention and
have barely developed their own regulations on this matter.
Only the provisions of the European Directives have been implemented and the
treatment of this matter has been incorporated into the general rights and
obligations that are present in the regulatory provisions in vigor.
In this way, psychosocial risks have been implicitly recognised rather than
clearly and explicitly regulated.
The UK is an example of minimal regulation. Only stress is covered by the
Stress Management Standards, but violence and harassment are not included in
this area because they are only considered to affect employment or other
relationships through the Protection from Harassment Act (1997).
However, employers and trade unions have reached agreements on lines of
action on violence and harassment in application of the European Framework
Agreement11. In addition, the public foundation ACAS can intervene on a
voluntary basis in cases of violence and harassment and has established
relevant guidelines and directives12. These factors have strongly influenced the

11
Preventing Workplace Harassment and Violence http://www.hse.gov.uk/violence/preventing-
workplace-harassment.pdf
12
https://www.acas.org.uk/bullying

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European Legislation on Psychosocial Risks Laura Rubio González

UK to be one of the countries where psychosocial risk management reaches a

higher percentage of companies according to the ESENER surveys of the
European Agency for Safety and Health at Work.
Spain would also be an example of this minimum approach, but with worse
results. The definition of discriminatory harassment in Directive 2000/78 was
transposed in Art. 28 of Law 62/2003 on measures to accompany the 2004
Budget Law and subsequently Art. 7 of Organic Law 3/2007 on Effective
Equality of Women and Men transcribed the definitions of sexual harassment
and harassment on grounds of sex from Directive 2002/73 or 2006/54. The
only own contribution in this area was the new wording of Art. 173 CP to
include the offence of serious harassment at work in 2010 and to reduce in this
case by half the penalty provided by this article for general conduct of
degrading treatment.
Collective bargaining has timidly addressed this issue. The European
Agreements have been transposed without giving them normative and binding
value, but only contractual value. Some agreements, such as the Chemical
Industry Agreement, have expressly included the obligation to assess
psychosocial risks, but without making special contributions or adaptations to
the conditions of the sector.
Both the practice of the Labour and Social Security Inspectorate, in its
Technical Criteria 69/2009 and 87/2011 and the Guide to actions on
psychosocial risks of 2012, and the jurisprudence of the courts have included
the treatment of psychosocial risks within the implicit content of the rights to
protection and prevention of health and safety at work (Art. 14 LPRL), the
right to physical and moral integrity (Art. 15 EC) and the right to due
consideration for dignity (Art. 4.2.e) ET).
Nevertheless, the result of this administrative action and of the case law has
been very patchy. It has taken time to understand the nature of psychosocial
risks and this has been reflected in a multitude of judgements, which have
pointed out the inappropriateness of including them in risk prevention, but the
most worrying thing has been the deviant doctrine of the courts with regard to
moral harassment, which has mostly required a subjective element of
intentionality on the part of the perpetrator as an essential element of such
conduct, a requirement which is not reflected in the legal norms which partially

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European Legislation on Psychosocial Risks Laura Rubio González

regulate it or in the current ILO Convention 190. However, the recent ruling of
the Constitutional Court 56/2019 of 6 May may mark the beginning of a
rectification of this doctrine.
The possible ratification of ILO Convention 190 by Spain could logically force
the reform of labour legislation to include in it the definition of all the forms of
violence and harassment at work, the regulation of the prevention of
psychosocial risks and of company policies to train and raise awareness and
deal with complaints and incidents that may arise with regard to these
behaviours.
4.2.States with partial regulation usually supported by non-binding or Soft-Law
standards
Secondly, there are countries that have partially regulated psychosocial risks.
In the case of France, harassment at work in its various forms is defined and
regulated in the Labour Code and the Criminal Code, including a reform in
2018 which penalises the actors of a collective action of harassment. However,
the same has not been done with regard to violence and psychosocial risks in
general.
In both cases there is an implicit inclusion of these behaviours within the right
to physical integrity and mental health in the same way as in minimum
intervention countries, but no express regulation. Collective bargaining has
played an important role with regard to these two aspects, sometimes supported
and encouraged by explicit action by the French government.
In Italy, work-related stress has been expressly included in the general
obligation to assess risks (Art. 28 Legislative Decree 81/2008), and Ministry of
Labour guides and circulars have been produced on psychosocial risks and
stress, but without addressing violence and harassment because they are
considered to be outside the scope of risk prevention and even outside the
scope of action of the Labour Inspectorate. It is considered that these
behaviours can only be dealt with by the courts.
In other countries, the text of the general law on the prevention of occupational
risks has included an article or a section expressly recognising these risks and
soft-law rules that have developed it. This has been the case in Germany, the
Netherlands, Norway, Finland, Denmark and Austria, among others.

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In the case of Germany, it is worth highlighting the effort to promote the

prevention of psychosocial risks that has been carried out within the German
Strategy for Health and Safety at Work (GDA), which includes all the German
public and private institutions dedicated to prevention and the participation of
the social partners.
Within the plan currently in force, a campaign on psychosocial risks
(PSYCHE) has been organised with an action guide for companies, mutual
insurance companies and labour inspectorates detailing information on how to
carry out the management of psychosocial risks and the steps to be taken and
the treatment of specific risks of harassment and stress.
The plan has included the implementation of training programmes for labour
inspectors and occupational physicians and the organisation of extensive
exchanges of experience between companies and workers.
4.3.States with specific regulations on psychosocial risks
The third option corresponds to the European States that have adopted a
specific regulation of these risks in a regulatory norm, as has been the case in
Belgium and Sweden at EU level.

a) Belgium
In Belgium, the specific regulation of psychosocial risks has been made
through the reform of the Law on Safety, Health and Welfare at Work of 2014
and more specifically through the Royal Decree of 10 April 2014 on the
prevention of psychosocial risks at work.
One of the most important contents of this regulation is the definition of
psychosocial risks, which, interestingly, emphasises the predominance of
harmful outcomes for the mental health of workers.
Basically, the regulation describes the general rules of risk management
adapted to psychosocial risks without specifically describing the most relevant
psychosocial risk factors.
It also describes, exhaustively in this case, how to respond to a worker's request
for psychosocial intervention through the opening of a protocol and the
competences and functions of occupational physicians and the so-called
persons of trust, who act as advisers or informal mediators in the event of
complaints of alleged harassment at work.

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b) Sweden
In Sweden, the AFS Ordinance 2015-4 on organisational and social aspects at
work was adopted. It does not use the term psychosocial risks but this other
term, which may be more accurate and descriptive as we have already pointed
out at the beginning.
In general, these risks are included in the systematic and integrated
management of risks by the company in the internal control systems. The
standard does not specifically cover assessment methods, but briefly regulates
that measures must be taken in three basic areas, making recommendations in
the text of the standard itself: workload, working time and abusive behaviour, a
term that could be assimilated to harassment.
The best contribution of this regulation is its description of the most relevant
psychosocial factors and this provides greater legal certainty as to the minimum
content of preventive and protective actions in this area, as the mere reference
to the methodological standards, as is the case in most countries, has led to the
approval of methods that deliberately exclude some relevant risk factors.
This is precisely what has happened in Spain with some scientifically validated
assessment methods in the banking sector that do not assess one of the main
factors in this sector, such as working time, or at least do not do so
exhaustively.
5. ILO Convention 190 and Recommendation 206 on Violence and Harassment
at Work
This brings us to the most recent ILO Convention 190 on Violence and Harassment at
Work and its accompanying Recommendation 206.
Although the ILO came up with the concept of psychosocial risks in 1994, there was
no subsequent ILO action on this term. In 2003 there was an expert conference on
stress and violence in the service sector, the final result of which was only the Code of
Practice on Violence in the service sector, from which work-related stress was
excluded because it was "undefined".
This is the regulation of psychosocial risks in the Convention and the
Recommendation:
a) The prevention of psychosocial risks.
Art. 9 of Convention 190 states that "Each Member shall adopt legislation
requiring employers to take appropriate measures commensurate with their

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degree of control to prevent violence and harassment in the world of work,

including gender-based violence and harassment, in particular as far as is
reasonable and practicable".
The Convention literally states in Art. 9 that enterprises shall "take account of
violence and harassment and related psychosocial risks in the management of
occupational safety and health" (Art. 9.b). More clearly and explicitly, it goes
on to state that companies should "identify the hazards and assess the risks of
violence and harassment, with the involvement of workers and their
representatives, and take measures to prevent and control such hazards and
risks" (Art. 9.c).
Paragraph 8 of Recommendation 206 deals in particular with the content of the
risk assessment, stating that it "should take into account factors that increase
the likelihood of violence and harassment, including psychosocial hazards and
risks. Particular attention should be paid to hazards and risks which:
 arising from working conditions and working arrangements, work
organisation and human resources management, as applicable;
 involve third parties such as clients, service providers, users,
patients and the public,
 and arise from discrimination, abuse of power relations and gender,
cultural and social norms that encourage violence and harassment".
Paragraph 9 of the Recommendation further states that "Members should adopt
appropriate measures for sectors or occupations and modes of work most
exposed to violence and harassment, such as night work, work performed in
isolation, work in the health sector, hospitality, social services, emergency
services, domestic work, transport, education and leisure".
In addition to this, it states that companies must provide workers with
"information and training" on these risks (Art.9.d) and Art. 10.g) of the
Convention also establishes a right of resistance of workers in situations of
serious and imminent risk of violence and harassment.
In the event of ratification of the Convention, the only legal context in which
these measures can be developed would be that of the Law on the Prevention of
Occupational Risks. Specifically, within the scope of "psychosocial risks", as
mentioned in the Convention itself, a term that commonly covers work-related
stress, violence and harassment at work.
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The preventive management of psychosocial risks includes the risk assessment

expressly mentioned in the Convention, the planning of preventive measures as
well as their regular monitoring and review. The aim of these actions would be
to eliminate the risk of violence or harassment or to reduce the likelihood of
this risk materialising and causing damage to the health of workers.
It would be necessary and desirable that, in the event of ratification of ILO
Convention 190, an express mention of psychosocial risks be made in the Law
on Prevention of Occupational Risks and that a regulation be developed
describing the obligations of companies with regard to these risks, as other EU
States have already done, as we shall see later on. Art. 21.2 of the LPRL should
also include the right to resist or withdraw in situations of serious and
imminent risk, as provided for in Art. 10.g) of the Convention.
b) Corporate policies on violence and harassment
On the other hand, there is another differentiated aspect of Convention 190,
which refers to the so-called company "policy" on violence and harassment at
work, which is closely connected to prevention but which acquires a different
scope and development since it also affects other labour rights.
This is expressly mentioned in Art. 9.a) of the Convention when it frames
within the prevention of violence and harassment the requirement for States to
require companies to adopt and implement, in consultation with workers and
their representatives, a workplace policy on violence and harassment.
The possible contents of a company policy on violence and harassment at work
are described in section 7 of Recommendation 206 and could be classified as
follows:
1) Awareness-raising and training actions
These would include actions to "affirm that violence and harassment will not
be tolerated", such as zero tolerance statements or "establishing violence and
harassment prevention programmes, where appropriate, with measurable
targets".
2) Codes of ethics or conduct
These should "define the rights and obligations of workers and the employer".
These codes would seek to detail and specify in the context of each company
what conduct is considered unacceptable.

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3) Procedures or protocols for dealing with complaints or incidents of

harassment
The Recommendation states that these should "provide for all internal and
external communications relating to incidents of violence and harassment to be
given due consideration and appropriate action taken"; "define the right of
individuals to privacy and confidentiality" and "include measures to protect
complainants, victims, witnesses and reporting persons from victimisation and
retaliation".
Art. 10 of the Convention further states:
"Each Member shall take appropriate measures to: b) ensure easy access to
appropriate and effective remedies and redress and to safe, fair and effective
reporting and dispute resolution mechanisms and procedures in cases of
violence and harassment in the world of work, such as:
- grievance and investigation procedures and, where appropriate, workplace
dispute resolution mechanisms;
- conflict resolution mechanisms external to the workplace (...) and that the
privacy of the persons involved, as well as confidentiality, should in any
case be protected as far as possible and as appropriate, and that care should
be taken to ensure that these requirements are not abused" (Art. 10.c) of the
Convention).
6. Critical issues in the management of psychosocial risks
a) Confluence of psychosocial risks with labour law and collective bargaining
As we have seen in the previous section, psychosocial risks are very present in
situations that are specifically regulated by labour law. This is the case in at least
three key situations
1) The insecurity and precariousness of the employment relationship, such as
temporary work and atypical work situations.
2) Conditions of hardship in the employment relationship, such as inadequate
wages.
3) Restructuring processes involving substantial changes and individual and
collective dismissals.
There is no doubt that these situations are psychosocial risks and can have a
negative influence on the mental health of workers, but their management falls
more within the scope of the application of labour legislation and collective

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bargaining than that of occupational risk prevention, whose remedies in these

situations would only be palliative.
In fact, these issues have sometimes been expressly excluded from the
management of psychosocial risks in some countries such as Denmark15 or,
implicitly, have not been included in most of the methods for assessing and
managing these risks.
It would be unreasonable to carry out a psychosocial risk assessment beforehand in
these situations as it is not designed for this purpose, but it is appropriate for the
company to receive advice from psychosocial experts and specialists when
undertaking this type of action, especially in the case of restructuring.
b) Overlap with equality and diversity plans and disengagement policies
The other confluence concerns the management of psychosocial risks with the
equality plans provided for in the law or diversity plans, which are currently only
recommended to be carried out, as well as with the disconnection policies (Art. 88
LOPDGDD) in which work-life balance is envisaged.
In this respect, we have already pointed out that the SLIC Guide on the assessment
of psychosocial risks recommends that such an assessment be made by gender, age,
permanent and temporary workers, etc., and that the situation of workers with 24/7
working hours and permanent availability be taken into account.
On the other hand, the psychosocial risk assessments currently in place also serve
to examine working time and work-life balance or even in some cases to examine
dual tasks at the place of residence of the employees.
In other words, the assessment can become a diagnostic tool on the equality of
people in the company and therefore equality and diversity plans would have to
implement the results of these assessments. These instruments do not overlap but
should play a complementary role.
c) Psychosocial risk management in sectors and companies with high
mobility of people
Finally, there are sectors in which the turnover of workers is continuous and it is
neither possible nor reasonable to carry out a psychosocial risk assessment, but
company policies could be implemented.
This is the case for the management of psychosocial risks on construction sites,
where it is never known in advance which workers will be employed and what
incidents may occur in their interpersonal relations in the course of their work.

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Regardless of the fact that each company makes its own psychosocial risk
assessment, the Health and Safety Plan for the construction site cannot be based on
a prior psychosocial assessment of all the personnel who will be working on the
site.
The Plan must contain a prevention policy based on an adequate organisation and
organisation of the work of the companies involved in the different phases in order
to avoid psychosocial risk factors such as work overload or lack of support and
participation.
It should provide for a code of conduct for site personnel to be disseminated
through information and awareness-raising actions for all personnel and should
establish procedures for intervention in the event of complaints or incidents of
violence and harassment that may occur during the course of the work.
There is also a similar practice in Parliaments. In particular, the European
Parliament and the British House of Commons have developed a detailed Code of
Conduct on behaviour that is considered unacceptable, have put in place a
complaints and incident handling procedure and have put in place some measures
to incentivise good practice by parliamentarians.
Currently in 2019, the UK Parliament is conducting an audit of the state of
interpersonal relations and possible abusive or harassing practices in interpersonal
relations.
7. Conclusion
As we have seen, it has not been an easy and straightforward process to develop
legal standards on psychosocial risks and experiences are still scarce and recent.
The opposition of European employers' organisations has meant that most
countries have opted, to varying degrees, to develop soft-law formulas and implicit
recognition of these risks in the laws in force, the results of which have been highly
variable and irregular.
Regulation is necessary to ensure that prevention is carried out at all stages:
primary, secondary and tertiary. Most European companies recognise in successive
ESENER surveys by the European Agency that compliance with the law is the
biggest driver for the implementation of preventive tasks. Moreover, the legal
certainty it provides is not comparable to the soft-law or implicit recognition
formulas mentioned above, which would only be applied at the discretion of each
legal operator.

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The particularity is that in the legal regulation of these risks there would always be
an element of indefiniteness that would not be present in other prevention
disciplines, such as the determination of the appropriate measures, since this can
only be established according to the context, the possibilities and the means
available in each specific situation.
This is the main obstacle for classical preventionists, who are used to establishing a
priori and objectively the measures that may be appropriate in the face of a
physical risk.
In this case, other principles more typical of legal techniques come into play, such
as the due diligence required of the company to adopt the most appropriate
preventive measures as soon as it becomes aware of facts and circumstances that
could constitute a psychosocial risk factor.
The company's responsibility is clearly established when it has not taken any action
in the face of such facts and circumstances, but it is more difficult to establish
when it must judge the adequacy of specific measures, since there is no legal
standard of conduct previously required, but there could be a social standard
established in the codes of ethics and conduct or protocols of each company.
This would be, in any case, the function to be assumed by legal operators and more
particularly by labour inspectors and judges and courts in the use of their
respective legal powers.

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