Martina Serna
LABOUR AND SOCIAL SECURITY DIVISION
In recent years, workplace harassment has become one of the most widely debated issues in employment law. This complexity largely stems from the fact that harassment did not originate as a legal concept, but rather in occupational psychology, and was gradually incorporated into the legal sphere to address certain forms of conduct that undermine employees’ dignity and personal integrity.
This gradual legal recognition has been accompanied by a significant increase in harassment claims.
However, not every reported situation can be legally classified as workplace harassment. In many cases, the underlying issue involves organisational disputes, management shortcomings or workplace tensions which, although potentially objectionable, do not reach the level of severity required to constitute harassment in constitutional terms. This distinction is crucial, as workplace harassment does not protect ordinary employment rights, but rather the fundamental right to physical and moral integrity enshrined in Article 15 of the Spanish Constitution.
The decisive role of case law
The absence of a precise statutory definition of workplace harassment has conferred a decisive role on case law in shaping its scope and protective framework. In this regard, Constitutional Court Judgments 56/2019 of 6 May and 28/2025 of 10 February mark a turning point in the doctrinal evolution of this area.
Judgment 56/2019 introduced a significant departure from the traditionally restrictive approach, which required violent or repeated conduct or clinically proven psychological harm. Instead, the Constitutional Court placed the protection of the fundamental right to moral integrity at the centre of the analysis. From this perspective, what matters is not the formal classification of the conduct, but its objective capacity to cause — or place at risk — physical, psychological or moral suffering.
The doctrine established in this judgment is structured around three key elements:
(i) the existence of deliberate conduct or conduct causally linked to the harmful outcome;
(ii) the occurrence of harm, or at least the objective suitability of the conduct to cause it, without the need to demonstrate actual damage; and
(iii) the presence of a humiliating or degrading purpose, or the objective capacity of the conduct to produce such an effect.
Particular emphasis is placed on the second element, as the Court expressly held that protection under Article 15 of the Constitution cannot be made contingent upon proof of harm already suffered, as this would effectively deprive fundamental rights protection of its substance.
Along these lines, the Court rejected the notion that situations such as prolonged professional inactivity or functional marginalisation may be regarded as neutral or purely organisational simply because they are not accompanied by explicit violence. In certain circumstances, keeping an employee outside the normal channels of professional activity may constitute an impairment incompatible with personal dignity.
Consolidation of the doctrine
This approach was confirmed and reinforced by Judgment 28/2025. While it did not represent a new interpretative shift, it consolidated the existing doctrine and clarified how lower courts should assess such situations. In particular, the Court emphasised that workplace harassment cannot be assessed in a fragmented manner by examining each act in isolation and justifying it individually. Rather, it requires a holistic and contextual evaluation of all the concurrent indicators.
Judgment 28/2025 also underscores the evidentiary framework applicable to fundamental rights claims.
Once the employee presents reasonable indicia of a violation, the burden of proof shifts to the employer or public authority, which must demonstrate that its conduct was entirely unrelated to any form of harassment. Requiring full proof of harassment or neutralising indicia through isolated justifications constitutes, according to the Court, an incorrect application of the constitutional standard.
Practical implications
The application of this doctrine by lower courts has not been entirely uniform. Some decisions, while formally endorsing Constitutional Court case law, continue to adopt a cautious and restrictive approach, stressing that the expansion of the concept of harassment does not mean that every unfavourable or irregular managerial decision amounts to a violation of moral integrity. Others, however, have applied the doctrine more rigorously, adopting a holistic and contextual assessment of employer conduct and recognising harassment even where certain actions may appear formally lawful.
In conclusion, the concept of workplace harassment and the legal protection afforded against it have progressively expanded, shifting the focus away from the subjective intent behind the conduct and towards whether it is objectively capable of undermining the employee’s dignity and moral integrity. This evolution does not, however, imply that every workplace conflict or situation of tension constitutes harassment; each case continues to require a careful contextual analysis and an assessment of the evidence in accordance with the criteria established by the Constitutional Court.
