Procedencia de la responsabilidad patrimonial del Estado por daño psicológico a causa del acoso laboral en las entidades públicas de Colombia, a partir de la Ley 1010 de 2006

Abstract

Recognition of the psychological damage as liability imputable to the State for victims of harassment at work, whose condition raises in public institutions, by an agent of the State against another, is at the foundation of this research. To determine the origin of the damage and repair, became a documentary study from the characterization of the legal and psychological foundation of studies of workplace harassment. Realizing that the workplace harassment, or mobbing, is a violence at work generating social problem, whose study in European countries, does not exceed thirty years, has resulted in a vast legal, jurisprudential and doctrinal development which allows to recognize that the subjection to cruel and degrading work leads to the appearance of different pathologies such as the psychological damage to the victims. Mobbing is considered a form of social violence that is embodied in the work sites; therefore external and national case law and doctrine acknowledge that it's a fact that victimizes, and therefore damage causing it, must be repaired. That's why the study of damages was deepened from the legal basis of the concept, classification, typology and doctrinal evolution, which has made it possible to recognize a new category of intangible damage apart from the moral, which gives way to the harm to health. From this new typology, the non-contractual liability of the State, its Constitution, its anti juridical damage, legal allocation schemes and the exemption from responsibility on the occasion of the psychological damage, was studied. It was shown that the non-application, late application and lack of socialization of the norms that regulate labour relations in the public administration, as well as the psycho-social risk, workplace harassment, safety and occupational health risks, work climate, among others, as the lack of leadership, encourages mobbing. This gives place to declare that harassment at work degrades human dignity, physical and mental health of the victim, and therefore that damage must be repaired based on tables designed by the Council of State, to quantify the intangible damage , along with other components that guarantee a comprehensive service