Psychosocial risks legal regulation and tutelage within European future scene.

The abstract will show a probable psychosocial risk regulation picture through different European countries law comparative. Everything points out that U.E work related illness wide scope is recently associated to emerging psychosocial risks, considering the actual lack of treatment towards this problem, it seems that the appropriate regulating framework is in accordance to this new reality.
Palabras Clave: 
Psychosocial; Risk; Legislation; ORP Conference
Autor principal: 
Ivan
Williams Jimenez
Universidad Carlos III
España

Introduction

This paper will show a probable psychosocial risk regulation picture by showing european trends related to these issues.

Everything points out that EU work related illness wide scope is recently associated to emerging psychosocial risks, considering the actual lack of treatment towards this problem, it seems that the appropriate regulating framework must be in accordance to this new reality.

Work-related psychosocial diseases is becoming one of the most common health and safety issues according to the legislative area. Therefore to promote a regulation change to solve the actual lack on this problem has to be a European priority.

The present paper will try to explore the different psychosocial risks within reparation, compensation, tutelage and jurisdiction or legal perspective. The main objective is to analyse the actual psychosocial risks legislator treatment, and the imperative need to change in a short time of period. Even though harassment as a psychosocial risk has been seriously treated from a legal point of view, there´s an apparent legal lack of analysis of other psychosomatic risks such as stress, uncertainty, burnout, work intensifying, mental and physical health deterioration, that should been properly treated by the whole social actors (entrepreneurs, jurisdiction, workers, etc…)

This paper will also try to show a short law comparative of these kind of risks, according to other countries jurisprudence or legal treatment, this paper will also give an international dimension linked to an actual need demonstrated in the main international and European politics experts forum.

In the latest decades (from 1966 aproximately), psychosocial risks origin has changed from the third main cause of EU accident rate to take up the second place, just before ergonomic risks, it´s rather obvious that these kind of risks should take the first place in number of workers affected by its social and economic costs considering the lack of better measure methods.

Unfortunately the number of people suffering from stress-related conditions caused or made worse by work is likely to increase, we can´t hide this, it´s a fact that is urgent to be properly treated. There is a lot of misunderstanding and sensitivity around psychosocial risks in the workplace, and there is still a stigma around mental health. The European Survey of Enterprises on New and Emerging Risks (ESENER) found that over 40 % of employers consider psychosocial risks more difficult to manage than ‘traditional’ OSH risks. Employers in Europe have a legal obligation to assess and manage psychosocial risks in the workplace (5). Furthermore, the European pact for mental health and well-being (6) recognises the changing demands and increasing pressures in the workplace and encourages employers to implement additional, voluntary measures to promote mental well-being.

Nowadays what we consider psychosocial risks as well, and work-related violence in particular, represent a severe health problem in Europe, affecting to more than 40 million workers according to European Foundation for better live and work conditions latest surveys. If we take a look to the latest EU Strategies we may consider as mandatory to promote a true physical, psychological, moral and social work wellbeing. These were the main underlined guidelines:

- Stress , harassment, depression, anxiety, violence at work integration through 89/391 UE Directive

- Work related stress framework agreement

- (Framework agreement on harassment and violence at work)

It might be also considered as emerging risks the following as stated from European Agency for Health and Safety:

Precarious work contracts within an unstable work market; vulnerability constant increasing within a globalization context; new labour figures in work contracts; a sense of work related insecurity; active ageing population; intense working days; work intensification; settled production and subcontracting; unreasonable emotional work demand; and personal and professional unbalanced condition (Expert forecast on emerging psychosocial risks related to occupational safety and health, European Agency for Safety and Health at Work, 2007)

Despite these kind of suggestions, it doesn’t exist a common legal regulation that guard, protect, repair and compensation of this kind of casuistry. Nowadays most of the member states treat this kind of issue in an inappropriate way according to their corresponding legislations, furthermore they don´t tackle this actual lack for several reasons that will be mentioned in this paper for sure.

Through this paper we will notice an apparent legislative lack in the base of the problem, that´s actually causing certain confusion according to the treatment of this issue. That´s why this matter is being tackled from a preventive level focalized in workers and companies, as we may see it in the latest healthy workplaces culture and campaigns, work health promotion, and physical and mental worker wellbeing. There´s been a great progress in specific areas such as moral and sexual harassment as we may observe in the preventive sphere in the figure of harassment protocols, conduct codes, also by its inclusion in legislation, regulation and collective agreements. Nevertheless the logic connection of this kind of risks together with essential rights such as dignity, discriminatory treatment, etc… does not suit properly in EU legislation, jurisdiction and protection. In order to get to this point we just have to take a look to a labour accord or a collective agreement to confirm a non-existent treatment or mention of these kind of risks.

At the moment we are attending to new work processes which turn into new work related illness, where victims are totally unconscious till nowadays, related to emerging psychosocial risks produced by work environments deterioration when pernicious practices arises such as violence at work, mobbing, harassment or stress factors. Taking this for granted it may be understand, though not justify, the unsatisfactory work related illness protection and regulation, the updating lack, concerning to occupational illness list, and its lack of adaptation to technological changes, new ways of work, new productive processes and new psychosocial risks.

There´s an urgent necessity to adapt the actual occupational illness list to the theoretical or ideal occupational illness system according to EU criteria, by updating the list and establishing not only a mandatory list but a complementary or optional list in order to consider these kind of psychosocial risks as occupational illness.

Methodology

This paper is placed within a Phd Project related to a law comparative researching project in the exciting area of psychosocial work related illness and risks under University Carlos III collaboration and support.

Nowadays according to different European legislation we have few precedents related to psychosocial risks, work conditions and their health consequences. Certainly this is not an easy matter of study, this phenomenon has been divided in several areas, mental, physical health field, healthy workplaces sphere; and the European legislation model lacks of a holistic treatment, that´s why it may see as mandatory a more suitable framework within our actual social reality.

This paper work may entail national and international expert contacts, it will also imply a deep legislation study including several countries; it will also require an immersion through different legislation, judicial sentences and legal or courts affairs.

Results

Aim of this paper:

During recent decades, the labour market has been characterized by significant change: changed tasks, roles and jobs, flexibility in employment and production, horizontal organizations and delegation of management. This restructuring, together with changes in information technology and globalization, gives rise to new challenges for organizations and individual workers. This kind of changes are taking place all over Europe and are often followed by increasing problems such as work-related psychosocial issues.

The aim of this paper is to raise awareness of work-related psychosocial issues, to promote a legislative and culture change in order to include psychosocial hazards in a more proper way within an European context and Member State levels.

The size of the problem:

According to Eurostat, European Agency, European Foundation latest reports and surveys, violence, bullying/mobbing at work are, as expected, not as widespread phenomena as stress, but both of them can have very serious consequences for the victim which lack of a standarised legislative criteria.

EU member states framework

The EU framework directive (89/391/EEC) that relates to the improvement of safety and health at the workplace is the reference legislation for all EU Members States.

Nowadays none of the EU countries has specific regulations on work-related stress, but all countries general legal frameworks refer to psychosocial risk factors that are the cause of work-related stress. In some countries, the legal provisions go further than the framework directive but specifying the need for employers to act against factors considered to be psychosocial risks that cause work-related stress. This is the case in Belgium, Denmark, Germany, the Netherlands and Sweden.

If we were to talk about Spanish situation, we are obliged to say that the main imperfection is the way the occupational list is managed; our list system is defined as strict, reductionist, partial (that’s the reason it ignores multicausal factors) and old-fashioned. We have to consider that actually most of the malaises that workers suffer are work related illnesses. But at the same time it´s quite difficult to find illnesses with a specific and exclusive work relation.

Our national illness list system must be forced to look like the European parameter system, by adding another supplementary list to the mandatory one, in order to consider new work related diseases.

Taking a deeper look to compared law in an European context, we may observe as usual the lack of regulation related to work-related stress, burnout syndrome in most of the states; according to the general concept of violence at work, and moral harassment in particular, just a few countries – Nordic countries, France, Belgium have barely adopted specific law. On the opposite, and thanks to the latest community non discriminatory law renewal a better cover has happened regarding discriminatory, sexual, gender harassment. In these different figures that represent violence at work, we may see how the latest legislation from most of European states have already predisposed an effective regulation that fights not only against the repair and punitive level but also the preventive one, all of these aimed at psycho-physic integrity.

In most of EU legal experiences in this context we will find legal resolution that consider somehow these emergent pathology, in the restorative ambit, through work-related illness concept. However the number of sentences are still inadequate, and shows us a partial and unequal treatment in the whole of the labour relations system.

EU legislation is far from solving this problem, community regulation hasn´t face this question properly; that’s why a legal-regulation psychosocial risks definition can´t be found if we study EU Justice tribunal psychosocial related latest declarations except for EU mental stress and harassment Directives.

It can´t be denied that this legal debate is associated to a great concern to fix this issue to the emerging social reality and for the latest years solutions had not appeared.

Results discussion

This European Recommendation, is after all, just a recommendation, that´s why it isn´t mandatory for EU countries. Despite the text is clearly a step forward towards a criteria unification, but this isn´t enough. Member states will continue preparing its occupational illness national list, that will be less o better adapted to European Commission criteria. Besides countries that totally refuse to proclaim this Recommendation have harmed Europe according to work-related pathology.

There´s also a total lack of criteria when talking about compensation, indemnification.

- Work loss return, work career opportunity decreasing, productivity reduction, work absence costs, medical leave, absenteeism, company reorganization, etc..

- Medical treatment costs (psychology and psychiatric assistance and medecins)

In addition to all these matter we have to add what is defined as a collective fraud; we all understand that there are quite a lot more occupational diseases than the ones declared. It has occur an occupational diseases underdeclaration in most of the countries due to the mixed up situation. If theory states that the particular illness takes place due to work characteristics then it must be considered as a work pathology. The real problem lies on how to proof this causal connection. For example how do we proof an occupational work-related illness when talking about burnout syndrome suffered by a medical professional that work on a child oncology context.

Conclussions

Nowadays there´s a complete chaotic scene in psychosocial risks legal treatment; some countries consider this issue as a common illness issue excluding any work relation; other countries treat this issue as a work related accident or as a work-related illness. Today we have to deal with this issue in a different way, taking for granted that psychosocial illness and pathology have a multifactorial origin. In that sense, some legal declarations are starting to arise, where work-related nature is recognized, as soon as a work environment causal relation is proved.

Most of the leading figures are also responsible of this confusion:

- Occupational professionals don´t have enough psychosociology training

- Institutions don´t support properly

Psychosocial risk as an occupational disease, hypothetic inclusion:

In the last decades we have come along to a critical and unattended demand to consider as an occupational disease damages caused by psychosocial risks. Since then severe changes have been demanded, according to EU 2003 specific Recommendation, although this statement didn´t consider these kind of list inclusion, it suggested to all the state members to promote research in the occupational illness area linked to professional activity regarding work-related psychosocial upset.

There´s no doubt about the need of a better legal conformation within legal and institutional sphere by integrating these emerging risks, where a growing impact of the psychosocial illness and inconveniences contemplate new health and safety challenges and compromises a work wellbeing development.

According to EU authorities, work-related diseases linked to psychosocial risk factor, won´t collect enough cientific evidence in order to be admitted in the privileged occupational illness catalogue regulated by a list, open or close system.

Nevertheless, though the ideal safer formula should represent the future psychosocial illness inclusion in the corresponding list, we must face that the actual level of illness study by medic science doesn´t allow an automatic and objective classification, such as the one seen in the listed illness.

Work-related psychosocial illness tutelage scope, can´t run out in Social Security compensation, we have to get a complete harm suffered reparation, that can be divided in biological, moral damages related to dignity, integrity, honor, intimacy, non discrimination

Agradecimientos Appreciation

I´d definitely like to express gratitude towards Carlos III Madrid University for the inestimable help that this university is offering to me in my Phd project support. I´d also like to thank Dr. Manuel Correa Carrasco for accepting my Phd management and tutelage; expert professor in this related área; through this personal project I´m learning and going into detail in an exciting psychosocial legislation researching.

I´d also like to thank the ORP XII International Health and Safety Congress for the oportunity to submit this paper and abstract, and also for the chance of being published in the International journal of Occupational Safety and Ergonomics.

Referencias bibliográficas Bibliographic references

  • 1. Correa Carrasco, Manuel Accidente de trabajo, responsabilidad empresarial y aseguramiento, Editorial Bomarzo
  • 2. Correa Carrasco, Manuel Acoso moral en el trabajo Concepto, prevención tutela procesal y reparación de daños. Thomson Aranzadi
  • 3. Correa Carrasco, Manuel. Los medios de tutela frente al acoso moral en el trabajo. Editorial Comares.
  • 4. Martínez Barroso, María de los Reyes. Riesgo psicosocial en el Sistema de protección social. Ediciones Laborum.
  • 5. Juan López Gandía, Javier Agudo Díaz. Nueva regulación de las enfermedades profesionales. Editorial Bomarzo.
  • 6. García Jiménez, Manuel; de la Casa Quesada, Susana; Molina Navarrete, Cristobal. Regulación de los riesgos psicosociales en los ambientes de trabajo: panorama comparado de modelos y experiencias en Europa y América. Editorial Bomarzo.
  • 7. Álvarez Cuesta, Henar. La tutela reparadora de los riesgos psicosociales. Editorial Jurua.
  • 8. Sánchez Trigueros, Carmen; González Díaz, Francisco Antonio; Hierro Hierro, Francisco Javier. Los riesgos psicosociales, teoría y práctica. Monografías Aranzadi.
  • 9. COMISIÓN EUROPEA: “Guía sobre el estrés relacionado con el trabajo” ¿La sal de la vida o el beso de la muerte? 1999
  • 10. Díaz Descalzo, Mª. C. “Los riesgos psicosociales en el trabajo: el estrés laboral, el síndrome del quemado y el acoso laboral. Su consideración como accidente de trabajo” RDS núm. 17 2002.
  • 11. Vallejo Dacosta, R. Riesgos psicosociales: prevención, reparación y tutela sancionadora, Pamplona (ThomsonAranzadi), 2005
  • 12. Lerouge, Loïc. Les risques psychosociaux, une analyse juridique comparée entre le Nord et le Sud de l'Europe (2012) Les risques psychosociaux en Europe Analyse jurisprudentielle. Editeur : L'harmattan, Paris
  • 13. European Agency for Safety and Health at Work, “How to tackle psychosocial issues and reduce workrelated stress
  • 14. Report on the current situation in relation to occupational diseases' systems in EU Member States and EFTA/EEA countries, in particular relative to Commission Recommendation 2003/670/EC concerning the European Schedule of Occupational Diseases and gathering of data on relevant related aspects. European Commission. March 2013
  • 15. Encuesta Europea de empresas sobre riesgos nuevos y emergentes. ESENER. Agencia Europea Seguridad y Salud en el Trabajo.

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