Bullying is a real problem for employees
“Bullying” is a recurring issue in the workplace. But what exactly is bullying? The Schleswig-Holstein Higher Labor Court (LAG) refers to the concept of harassment as defined in Section 3 (3) of the General Equal Treatment Act (AGG), which states that harassment is unwanted behavior (intended to) violate the dignity of the employee and which is characterized by an environment involving
- Intimidation,
- Hostility,
- Humiliation,
- Degradation or
- Insults
People targeted by bullying can suffer physical and psychological impairments and even become unfit for work as a consequence.
Bullying from a legal perspective
Considering the consequences that workplace bullying can have for those affected, it comes as no surprise that cases like these end up before the court. It is not uncommon for affected employees to demand compensation from their employer because they were not adequately protected against bullying.
This was the case for an employee who sued her former employer, demanding €40,000 for damages and compensation for pain and suffering. She had been bullied by two colleagues to such an extent that she had become ill. Because of bullying such as spreading rumors, gossiping, unjustified accusations, etc., she suffered from an increased resting pulse rate, stomach pain, and persistent depression. The employer did nothing to rectify the situation.
The affected party bears the burden of proof
However, the plaintiff failed to win in court:
On the one hand, she was unable to adequately describe the acts of bullying nor the causal connection to her health complaints. Even a medical report stating a “diagnosis typical of bullying” was not enough to convince the court. On the other hand, the employer was not found liable as he was not aware of the bullying incidents. The court was not prepared to assume that the employer must know everything that happens in his company only because it is a small one.
Therefore, the court rejected the employee’s claim for compensation.
Employer not responsible for the colleagues’ behavior
The court also did not make the employer responsible for the behavior of the allegedly bullying colleagues. The employer is only responsible for his employees’ conduct, if the misconduct happens while the bullying employee performs his or her contractual obligations. According to case law of the German Federal Labor Court (BAG), this would only be conceivable in case a manager would bully an employee reporting to him/her while the manager issued instructions to the bullyied employee.
Lessons from this ruling
Employers must intervene and protect affected employees against bullying if they become aware of the issue. Yet even if the management is not aware of the problem, employers can still be liable for damages if superiors bully subordinates.
However, in case of claims for compensation, employers should ask for detailed specifications of the alleged bullying, in particular stating place, date, and specific individual incidents (e.g. exact statements, gestures, actions). A simple blanket allegation of being bullied is not sufficient.
Even if a doctor certifies a diagnosis “typical for bullying”, this does not suffice to prove the bullying nor it being cause of the illness of the concerned employee.
What can we do for you?
Do you have questions about employer obligations or bullying? Do not hesitate to contact us!
Summary of the key facts:
- Allegations of bullying only entitle employees to compensation if the employee can provide a detailed description of the individual incidents that violated their personal rights or their health.
- If employers are aware that employees are bullying other employees, they always need to take action to prevent claims for damages.
- If superiors bully subordinates, the employer may be liable for damages even if the management was unaware of the situation.
