Proving workplace mobbing: Supreme Court conclusions

According to the facts of the case, the employee linked her dismissal by mutual agreement to systematic moral and psychological pressure and asked the court, among other things, to establish the fact of mobbing and reinstate her in her position. The courts of first instance and appeal dismissed the claim, the Supreme Court upheld that decision while clarifying the approach to allocating the burden of proof in this category of cases.

Definition of mobbing

Ukrainian legislation defines mobbing as systematic, prolonged, and intentional acts or omissions by an employer or employees aimed at humiliating an employee’s dignity or creating a tense, hostile, or degrading environment for that employee, which may take the form of psychological and/or economic pressure.

At the same time, the legislator clearly distinguishes mobbing from ordinary managerial actions: lawful requirements regarding the performance of job duties, changes to working conditions made in accordance with established procedures, and other legitimate management decisions do not, in themselves, constitute mobbing.

Allocation of the burden of proof in mobbing cases: the Supreme Court’s key position

In the above case No. 642/2981/24, the Supreme Court emphasized that, first and foremost, the claimant (an employee) must provide factual data indicating the circumstances of possible mobbing. In turn, the burden of proving the absence of such circumstances rests with the defendant (an employer).

Thus, the claimant is expected to present proper factual material that reasonably indicates the existence of systematic actions and/or pressure. However, if the defendant rebuts the claimant’s arguments with proper evidence, the claim will be dismissed.

The Supreme Court explained why the outcome of the dispute remained unchanged: the lower courts examined the claimant’s submissions and found them insufficient and unconvincing. Therefore, the Supreme Court amended only the reasoning in the decisions, leaving the dismissal of the claim on the merits unchanged.

The Court also separately referred to the general logic of safeguards in dismissal cases, mentioning the approach of International Labour Organization Convention No. 158, which seeks to prevent the entire burden of proving the lawfulness of a dismissal from being placed solely on the employee.

Why were the submitted pieces of evidence not accepted by the courts, and what conclusions follow from this?

First, the court’s assessment of the audio recording submitted by the claimant is particularly illustrative. The court of first instance did not recognize it as proper evidence because:

• the participants in the conversation were not identified;
• the recording did not make it possible to reliably establish the date, time, and place of the event;
• no expert examination was initiated to compare the voices;
• questions arose regarding the admissibility of the method by which the recording had been obtained;
• in terms of content, it captured a conflictual conversation, which did not confirm the systematic and prolonged nature of the pressure.

For practice, this means that audio or video evidence may have substantial probative value only where it is clearly tied to the relevant circumstances (who, when, where) and where its authenticity and admissibility can be verified, including the method by which the recording was obtained. As the court noted, making an audio recording of a person’s voice without that person’s consent infringes the right to protection of that person’s private interests; therefore, there was no evidence that such an audio recording had been obtained in accordance with the procedure established by law. That is to say, prior to recording any communication, the participant must be notified of the recording and provide their consent.

Second, the court took a critical view of the claimant’s internal memoranda and other internal complaints. They were not taken into account because they were unilateral and lacked proof that they had been sent to and received by the addressees for the purpose of conducting a review.

The practical conclusion is clear: internal complaints matter when the fact of their submission, as well as the employer’s subsequent response (or lack of response), can be proven.

Third, the courts drew attention to the time gap. The claimant’s submissions to law enforcement authorities and other institutions were made only after her dismissal and were not supported by the results of any official reviews or investigations that could have confirmed the relevant circumstances during the period in question.

The courts also separately noted that the claimant had not filed a complaint with the State Labour Service regarding mobbing. Although this is not a mandatory precondition for judicial protection, such steps often strengthen a party’s evidentiary position by helping document events in a timely manner and creating an independent body of supporting materials.

Fourth, the issue of authority and the actual influence of the person against whom the allegations are made is also important. In this case, it was noted that the person the claimant considered the initiator of the pressure became acting head only from a certain date, whereas the alleged mobbing was said to have occurred over a longer period.

In similar cases, it is important to show that the alleged perpetrator had real managerial tools at their disposal: the ability to allocate tasks, influence access rights, conduct performance evaluations, determine remuneration, oversee disciplinary procedures, or organize the work process.

What evidence is usually the most persuasive in mobbing cases?

Practice shows that courts are most receptive not to isolated incidents, but to a body of evidence that confirms the repeated, prolonged, and targeted nature of the conduct. Such evidence includes:

• corporate correspondence and messages demonstrating humiliation, isolation, or threats;
• HR and organizational documents reflecting an unjustified deterioration of working conditions or economic pressure;
• substantiated internal and external complaints with proof of registration and the results of their review;
• witness statements containing a specific description of events and their frequency;
• medical records and expert opinions, which may help establish the consequences and the causal link when considered together with other materials.

Regarding audio and video recordings, they may carry significant evidentiary weight only if they are verifiable, properly linked to the specific circumstances of the case and obtained in accordance with the procedure established by law, including without secretly recording a person without that person’s consent.

It is important that the overall evidence of mobbing should demonstrate a pattern of systematic conduct rather than a one-off conflict.

Conclusion

In summary, the Supreme Court’s position points to an important balance: the employee must provide factual data that convincingly indicates possible mobbing, while the employer must prove the absence of such circumstances.

At the same time, without proper documentation of events in time, confirmation of their repetitive nature and proof of the admissibility of evidence, a court will generally not find the fact of mobbing established. For this reason, proving mobbing is one of the most difficult aspects of protecting labour rights, since such conduct is usually systemic and manifests through a combination of actions rather than a single isolated violation. That is why effective protection requires a comprehensive approach to the collection and assessment of evidence.