Bullying in the workplace: What employers should consider

Definition of bullying and harassment

According to German supreme court case law, "bullying" refers to the "systematic hostility, harassment or discrimination of employees against each other or by superiors" (BAG, 15.01.1997 – 7 ABR 14/96) and requires behaviour that, at least in its entirety, violates the general personal rights, honour or health of the person concerned. According to EU case law, harassment is "improper conduct which is expressed repeatedly or systematically over a long period of time in the form of behaviour, words, words, actions or gestures" (ECJ, 13.07.2018 – T-275/17). 

Legally relevant behaviour

Against this background, not everything that is commonly labelled as bullying has legal protection. "Points of friction" in the company that can be categorised as socially acceptable applying an objective standard, taking into account the nature of the company and the usual interaction between employees in the company, are not covered. 

Whether a case of bullying exists depends on the circumstances of the individual case. Typical behaviours that may indicate bullying include so-called "gaslighting", exclusion or intimidation by superiors (bossing) or employees (staffing) or loss of contact or communication (ghosting). Sexual harassment and discrimination can also be forms of bullying. In addition, issues bundled under the term "cyberbullying" are becoming increasingly apparent in the workplace. However, a medical certificate which includes a medical finding- considered to be "typical of mobbing" alone does not constitute evidence of acts of mobbing or corresponding causality (BAG, 16.05.2007 – 8 AZR 709/06).

Likewise, instructions within the scope of the employer's right to issue directives are generally not to be qualified as bullying, for example, if an employer were to unlawfully dismiss or issue a warning in connection to a breach of duty that later proves to be unfounded. The situation may be different if the employer deliberately fails to provide the employee with work (so-called "cold calling") and the associated exclusion from the operational process of the workplace. 

Obligations of the employer to act

Legal basis

From the duty of care under the employment contract pursuant to Sec. 241 (1) German Cicil Code (Bürgerliches Gesetzbuch – BGB), according to which employers must protect employees from harassment by superiors, it follows that employees or third parties over whom the employer has influence and provide them with a humane workplace. In addition, Sec. 75 (2) German Works Constitution Act (Betriebsverfassungsgesetz – BetrVG) includes the obligation to protect affected employees together with the works council and to work towards a positive working environment in the interests of free personal development, although this provision does not grant individual employees any individual claim against the employer. However, Sec.  5 (1) German Occupational Health and Safety Act (Arbeitsschutzgesetz – ArbSchG) does grant a claim under occupational health and safety law, which requires the employer to carry out a risk assessment, in particular with regard to mental stress at work, and to determine which occupational health and safety measures are necessary. 

In addition, further obligations arise under the General Equal Treatment Act (AGG). Employees must be protected from discrimination based on race, ethnic origin, religion and belief, age, gender, disability, or sexual identity. In accordance with Section 12 AGG, employers must also take preventative and repressive action where necessary. For example, they are obliged to take action against the perpetrator and take measures under labour law such as issuing warnings, redeployment, transfer or dismissal.

Prevention

In particular, an employer can establish a set of values by introducing a code of conduct, laying down binding guidelines for respectful behaviour among employees. It should be noted that these obligations relate to company policies and procedures and are therefore subject to co-determination in accordance with Sec. 87 (1) No. 1 BetrVG.

In addition, employers should also raise the awareness of their senior managers, for example through training. The role model function of managers is also important, for example by setting an example of appreciative and respectful behaviour

Finally, a harassment officer could be appointed, or an anonymous complaints office could be set up, possibly in combination with a reporting centre under the Whistleblower Protection Act (Hinweisgeberschutzgesetz – HinSchG).

Seeking clarification

In suspected cases, employers must protect (allegedly) affected employees from violations of personal rights on the one hand and supervisors/colleagues from unjustified accusations on the other

Any clarification measures, actions and reactions should be sufficiently documented so that they can be substantiated in subsequent proceedings before the labour court (see LAG Schleswig-Holstein, 11 October 2023 – 6 Sa 48/23). When investigating the facts in preparation for a dismissal, the employer must take into account the strict deadlines for giving notice of dismissal. 

Response

Measures taken by the employer must be appropriate and proportionate overall. In the case of minor allegations, appropriate measures may include mediation proceedings, team supervision or team coaching. If these "gentler" measures are unsuccessful or if the severity of the bullying behaviour requires a more severe response, transfer or disciplinary measures (written warning, dismissal with or without notice) might be considered.

Liability risks

Employers are exposed to potential liability risks in cases of bullying. In particular, victims of bullying can bring claims against their employer in accordance with Sections 823 et seq. BGB, such as injunctive relief, damages or compensation for pain and suffering against the employer, if a protected characteristic (physical/psychological integrity) or a protective law (duty of care pursuant to Section 241 (2) BGB) has been violated.

If acts of bullying also constitute harassment within the meaning of the AGG, further liability may arise. In cases of discrimination, employees can be awarded appropriate compensation in addition to claims for damages.