Stalking, a criminal alternative for bullying at the workplace?

In a recent decision of 28 September 2010, the Belgian Supreme Court clarified, in a criminal court case, the use of the criminal act  of "stalking" (article 442bis Criminal Code) within the framework of bullying at the workplace.

In the case looked at by the court, a female employee had filed a criminal complaint against her superior at work, on the basis of stalking because:

• she had received negative evaluations that were, in her opinion, unfair and that had made her depressed;
• her superior had removed her brutally (with violence) from his office;
• furthermore, her superior had, she claimed, made sure that the French Community did not extend her temporary work contract.

The Court's indictment division judged that the peace of mind of the employee was indeed disturbed, but not sufficiently enough to consider the acts of her superior as acts of "stalking". As a consequence, the superior was not brought before the Criminal Court.

The Supreme Court confirmed the principle that was already relied upon for some time by the Labour Courts within civil procedures regarding bullying at the workplace: there has to be behaviour that can objectively be considered as a fault. The fact that the victim of mobbing at the workplace considers the behaviour as a disturbance of his/her peace of mind is as such not sufficient.

Furthermore, the Supreme Court judged that, in order to be considered as "stalking", the offender has to commit certain acts deliberately to disturb the peace of mind of the victim in a serious way and without any justification.

Article 442bis Criminal Code: The person who stalks another person, while he knew or had to know that he, by his behaviour, disturbed the peace of mind of that person in a serious way, will be sanctioned by a term of imprisonment of between 15 days and two years and by a fine of between fifty and three hundred euro, or by one of these sanctions alone.