[Workplace Bullying Legal Elements 5 of 5]The Fifth Boundary of Workplace Bullying: Understanding "Risk": Is a Psychiatric Diagnosis Mandatory to Prove Health Harm?
"The complainant wasn't hospitalized, has no psychiatric diagnosis, and didn't take sick leave. How can you claim their physical or mental health was harmed?"
This is a question frequently raised by companies when handling workplace bullying complaints—one that risks excessively narrowing the legal scope of protection.
Article 22-1, Paragraph 1 of the Occupational Safety and Health Act establishes the fifth legal element of workplace bullying as improper words or actions that "cause harm to physical or mental health." The Ministry of Labor further clarifies this element as: the perpetrator's words or behavior causing physical or mental health harm or adverse impacts to the affected individual.
Workplace bullying still requires all five elements to be met simultaneously; it cannot be established solely because an employee feels uncomfortable, disagrees, or experiences stress. However, medical diagnosis certificates, hospitalization, or severe illness cannot be set as the sole threshold for determination.
This element of harm can be understood through the concept of "risk." What the law aims to prevent is not only already-manifested illness or injury, but also the "risks" created by an improper work environment that threaten workers' physical and mental health.
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1. Harmful Outcomes: Do not wait until an employee collapses to recognize workplace bullying.
"Harm to physical or mental health" encompasses both mental health and physical health.
Mental manifestations may include fear, anxiety, insomnia, loss of concentration, low mood, dread of entering the workplace, or a lost sense of security due to prolonged isolation. Physical manifestations may include headaches, palpitations, gastrointestinal discomfort, abnormal blood pressure, fatigue, or other stress responses. Whether an individual case reaches a medically defined illness threshold must still be evaluated by medical professionals; internal corporate investigation teams should not attempt self-diagnosis.
More importantly, the legislative intent explicitly specifies that health harm does not strictly require actual, concrete physical or mental injuries to materialize. If improper words or conduct have created an overtly hostile or toxic workplace environment that places workers in a potential hazard where illness or injury is likely, it may still satisfy this element of harm. The goal of this element is to mandate that employers fulfill their preventive duty before total harm materializes, rather than waiting for an official medical diagnosis before intervening.
Therefore, workplace bullying does not inherently require hospitalization, critical illness, or long-term inability to work as prerequisites. If a supervisor continuously engages in public humiliation, threats of termination, or intentional isolation that creates reasonably identifiable health risks in the working environment, the company cannot claim no harm exists simply because the complainant continues to clock in daily.
Keywords: [Workplace Bullying] [Physical or Mental Health Harm] [Potential Hazard]
2. Causation: An employee having symptoms does not automatically mean bullying caused them; lacking a diagnosis does not mean there is no connection.
The most difficult issue within the fifth element is often not whether the employee experiences discomfort, but whether a reasonable causal relationship exists between these health impacts and the reported improper conduct.
An employee may have pre-existing anxiety, insomnia, or health issues, or may simultaneously face familial, financial, or interpersonal stressors. Therefore, one cannot conclude that all symptoms stem from workplace bullying solely because a medical certificate was submitted; similarly, the lack of medical records cannot be used to arbitrarily dismiss the impact of workplace events on an employee's health.
The proper investigative approach is to establish a timeline:
When did the improper behavior begin?
When did symptoms appear or escalate?
Did the employee raise concerns to supervisors, peers, HR, or occupational medical staff?
Did symptoms improve after leaving the specific environment?
Did witnesses observe marked shifts in mood, attendance, work performance, or interpersonal interaction?
Furthermore, the nature of the conduct itself must be evaluated. A single disagreement carries a vastly different potential health impact compared to long-term public verbal abuse, group exclusion, or threats to employment security. The Regulations Governing Measures for Preventing Workplace Bullying mandate assessing background, frequency, location, motivation, purpose, as well as instances of exclusion, job obstruction, power oppression, or invasion of privacy—requiring investigators to judge based on holistic causation rather than relying on a single document.
Keywords: [Causation] [Mental Health] [Physical Health]
3. Evidentiary Determination: Medical diagnosis certificates are important, but they are not the sole proof of harm.
A diagnosis certificate undoubtedly holds significant evidentiary value—particularly in understanding symptoms, treatment timelines, and work adaptability—but it is typically only one link in the broader chain of evidence.
Companies should also holistically review leave records, attendance anomalies, work logs, emails, chat logs, EAP or occupational healthcare records, timestamps of complaints shared with friends, family, or colleagues, and witness testimonies regarding changes in the employee's condition. Investigation reports must clearly differentiate between "facts recorded in objective data," "subjective feelings of the parties," and "conclusions rendered by the investigation unit based on evidence"—avoiding presenting speculation as established fact.
Conversely, companies cannot compel complainants to disclose full medical histories or harvest health data without limitation under the guise of an investigation. Health information is highly sensitive; handling it must adhere to principles of necessity, purpose specification, and restricted access ("need-to-know"). When professional medical assessments are required, professional assistance should be sought rather than relying on HR or management to self-evaluate.
Regardless of whether bullying is ultimately substantiated, once a company becomes aware that an employee faces potential health risks, it must enact measures to prevent recurring harm, provide medical or psychological counseling referrals, and adjust job duties or physical workspaces. The law demands "immediate and effective" handling and protection, rather than delaying care for employee safety until an investigation report is finalized.
Keywords: [Medical Diagnosis Certificate] [Chain of Evidence] [Employer Responsibility] [Procedural Justice]
Advice from Attorney Chen Ye-xin
The concept of "risk" in the fifth element of workplace bullying serves as a reminder to companies: do not focus solely on whether an employee has already fallen ill, but evaluate whether the working environment has created risks threatening physical or mental health.
When evaluating this element, three questions should be answered:
What specific negative physical or mental impacts has the employee experienced?
Is there a reasonable correlation in time, content, and intensity between these impacts and the reported conduct?
Beyond medical diagnosis certificates, are there supporting records such as attendance, messaging logs, witness accounts, and work performance shifts?
Lacking a medical diagnosis certificate does not mean there is no health harm; conversely, possessing a diagnosis certificate does not automatically establish workplace bullying. A truly professional investigation makes verifiable determinations by integrating conduct, environment, timeline, and health impacts while upholding personal privacy.
When an employee is suffering from insomnia, dreads coming to work, or fears stepping into the office, will your company still wait for a medical diagnosis certificate before recognizing the growing "risk" within the work environment?
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