Page 318 [318]
CSILLA LEHOCZKY-KOLLONAY
1996. Its two paragraphs protect against two different kinds of human rights
violation, linked to that time idea of "dignity". Paragraph 1 protects against
sexual harassment — signalling that sexual harassment was considered separate
from sex-discrimination.” Paragraph 2 aimed at protection from hostile working
environment directed against an individual, based on any specific characteristic
of a person. This was named “moral harassment” along French terminology,
“mobbing” or “bullying” would be the closest in present day English terms.
Beyond this novelty its provisions brought another type of progress: making
protection against harassment a responsibility of the employer — confirming
the shift from earlier times when workplace harassment was considered merely
personal misbehaviour, beyond the responsibility of the employer and actionable
as a private lawsuit against the offender.
Article 26 has been criticized for its limited scope, protecting only non¬
material rights, while it should cover fundamental “material” workplace rights
(e.g. fair wage, reasonable working time) as well.'® So far altogether two collective
complaints were submitted under Article 26§2, both on conscientious objection
to certain tasks. In the context of military service the complaint was considered
a freedom of occupation (Art 1$2) issue, not implying harassment.’
The other case”° — connected to objection for conscientious reason to
termination of pregnancy and related examination — the only decision so far
when the Committee found violation of Article 26$2 - is significant regarding
the allocation of responsibility for the effective protection against harassment.
In the complaint against Italy, claiming that under the law permitting
conscientious objection to health personnel, those doctors who not objected
to perform abortion had been confronted with isolation at work and often
needed to carry out abortions alone amounting to a form of harassment. Even
if the Committee found the statements by the doctors largely anecdotal and
therefore insufficient to ground a violation ofthe Social Charter, considering the
obligations imposed on the State by Article 26$2 to take preventative action to
ensure moral harassment does not occur in situations where it is likely, it found
the failure of the Government to take any such action amounted to a violation
of Article 26§2.”!
In that time thinking the “unwanted conduct” (harassment) could mean also more
favourable treatment, opposite of discrimination.
18 Barbara Kresal, Article 1 - Human Dignity, in Filip Dorssemont — Klaus Lörcher - Stefan
Clauwaert — Mélanie Schmitt (eds.), The Charter of Fundamental Rights of the European
Union and the Employment Relation, Oxford, Hart Publishing, 2019, 191-208, 197.
1 European Organisation of Military Associations and Trade Unions (EUROMIL) v. Ireland
Complaint (No.164/2018, 21 October 2020) §35.
20 Confederazione Generale Italiana del Lavoro (CGIL) v. Italy Complaint No. 91/2013
2° Ibid. $297.
+ 316 +