Employment Law

Employment law: bullying in the workplace

A German court has denied compensation to a woman in Germany who sued her employer for 893,000 euros after allegedly suffering years of workplace bullying (Az.: 17 Sa 602/12).

Mobbing, Arbeitnehmer

© PictureP.-Fotolia

Dismissal without notice

The accountant brought the case after allegedly suffering workplace bullying at the hands of her employer since 2008.

The bullying supposedly began after she was dismissed without notice by her employer for fraudulently claiming to have worked hours she had not. She disputed the allegations and after winning the case the termination of her employment was held to be void.

Workplace bullying

The account was then re-engaged and supposedly suffered years of torment and threatening situations as a consequence of the dispute.

She claimed the employer denied her training opportunities and relocated her to ‘get rid of her’. She also asserted that the neurological testing she was forced to undergo violated her privacy and dignity.

The employer in the case disputed the accusations and applied for the claim to be dismissed, arguing that the employee voluntarily took part in the medical examinations.

Lack of evidence of bullying at work

The judges saw no intentional or negligent actions by the employer which breached the employee’s personality rights and refused to grant the employee any compensation. The court took the view that the employee had not sufficiently demonstrated that bullying took place either through a single action or a combination of actions.

Employee’s refusal to mediate

The court did accept that the employer had done nothing to improve the employment relationship, which was already suffering under the strain of mutual mistrust, but also noted that the employee had engaged an intermediary to attempt to reach a workable solution.

As a result the court held that the employee had acted unreasonably in continually and stubbornly accusing the employee of bullying and refusing to take part in mediation unless her superiors agreed to apologise. As such, it was the employee’s actions which had hindered any negotiation process. This meant that the extent of the dispute was more a result of the employee’s reaction rather than any tendencies to bully her.

The court explicitly drew the parties’ attention to the fact that they could have ended the dispute by reaching an amicable solution through mediation.

Bullying at work threshold

It can be seen that where employees bring claims against their employers for workplace bullying, it is the employee who must show that bullying has taken place. Moreover, the employee must demonstrate that there has been a systematic campaign of bullying. It is not sufficient for the employee to simply allege feelings of animosity.

The regional appeal court of Düsseldorf clarified that even a prolonged conflict situation, characterised by somewhat exaggerated criticism, is not enough to amount to a breach of an employee’s personality rights.

Compensation for workplace bullying

As the claimant’s case was dismissed, the court decided it was unnecessary to calculate the measure of damages the employee would have been entitled to. The judges also gave no general indication as to the level of compensation an employee can expect to receive in workplace bullying cases. It therefore remains to be seen whether the German courts will be prepared to grant compensation in the scale sought in this particular case.

Nicola Simon ist Fachanwältin für Arbeitsrecht. Sie hat sich sowohl auf die Beratung der Arbeitnehmer, als auch der Arbeitgeber und Betriebsräte spezialisiert. Seit 2008 ist sie Referentin beim Medien- und Gründerzentrum.

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