Two spanish magistrates analyse school and workplace bullying from a criminal perspective and offer alternative solutions on Instagram

Marisa Llambes Sánchez and Amparo Salom Lucas are two magistrates with more than 20 years’ experience who, a year ago, created a legal dissemination account on Instagram [email protected] after discovering that promising young lawyers were informed by the news that jurists published on this social network.

They currently have more than 5,000 followers and a total of 58 publications. On the account they explain, for example, what a duty court is like, how to position oneself when entering a courtroom and also analyse concepts. Both magistrates have the motto “Open doors for open minds”.

In a recent post, both have analysed school and workplace bullying from a criminal perspective, opening the mind to other types of defence, such as social, civil or contentious-administrative jurisdiction, as it can be more effective. Arguments that have been exemplified with various rulings handed down by the Supreme Court.

HARASSMENT AT WORK: “THE JURISPRUDENCE OF THE TS IS VERY RESTRICTIVE”

With regard to harassment at work, which is the hostile or humiliating treatment to which a person is subjected at work and which can cause psychological and professional problems, Marisa Llambes, senior magistrate at the courts of Villareal, Castellón, explained that there are several avenues of defence because “the case law of the Supreme Court is very restrictive”.

If the relationship between the company and the worker is private, she pointed out that, in addition to criminal proceedings, it is also possible to go to the social courts by filing a lawsuit for the protection of fundamental rights.

And if, on the other hand, the employment relationship is public, i.e. between the administration and the civil servant, one can also go to the contentious-administrative courts. And now, when they want to claim for occupational risk prevention material, they can go to the social courts.

SCHOOL BULLYING: TWO LEGAL SOLUTIONS

According to Amparo Salóm, magistrate of the Court of First Instance No. 3 of Torrent, Valencia, bullying or harassment by minors against classmates within the centre itself has two legal solutions.

On the one hand, there is the criminal route, which is aimed at the people who have carried out the harassment. For children, Law 5/2000 of 12 January, which regulates the criminal liability of minors, would apply, and for adults, the Criminal Procedure Act.

But there is also the civil action against the school, which can be linked to the criminal action or can be exercised separately. The magistrate emphasised the 1991 reform of article 1903 of the Civil Code, which establishes the quasi-subjective responsibility of the school for acts of harassment committed within the school, both in ordinary hours and after school.

Thus, if the court is presented with evidence proving that the child has been a victim of bullying, it must respond by compensating for these damages. And you can only avoid compensation if you can prove that you acted as diligently as you could, i.e. what is known in the Civil Code as “a good parent”.

It is also possible to go to the administrative courts if some kind of disciplinary proceedings are opened against an adult and an appeal has to be lodged.

THE ESSENTIAL CORE OF THE CONDUCT

When you are in the criminal type, you have to understand the essential nucleus which, in the words of Llambes, are the hostile and humiliating acts. The problem that arises is that there are many complaints or denunciations that give very generic explanations, but the reality is that it is necessary to specify and prove. For example, “he took away my passwords to access information” or “he came through the door and insulted me”.

Therefore, in order for the criminal action to be successful, it is necessary to spend some time gathering evidence. In addition, the harassment must be repeated and the seriousness and prevalence of the harassment must be taken into account, which means that for harassment at work to exist, there must be a relationship of superiority.

Another acquittal by the Supreme Court was 45/2021, which dealt with a case involving local police officers in Santander. An officer had a tense working relationship with a superior and although it was proven that the latter made statements in police stations to discredit her and opened 10 disciplinary proceedings against her without a legal basis, the “no gravity” was applied because the tormenting atmosphere was also with other colleagues.

And furthermore, the medical report accredited that the victim had psychological problems but not that they were a consequence of the colleague’s conduct.

And finally, in 2021, the High Court sentenced an employer to one year in prison because the case ended in suicide. The employee’s tasks were being increased and for a time she was dismissed, but she was reinstated and forced to perform other tasks. In addition, the slights led to a situation of discomfort that made her take her own life.

She was finally convicted because the employer was aware of her vulnerability and the impact that the change of tasks would have on her.