Bullying (labor law)

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Bullying in the workplace is standardized differently in the legislation of the individual countries : In some countries (e.g. Sweden , France or Spain ) there are laws against bullying in the workplace. In most countries of the world, there is no explicit protection against harassment unless specific acts legal offenses meet. In Germany, bullying in the workplace can be described as systematic hostility, harassment or discrimination between employees or by their superiors . It is characterized by repeated hostile, degrading, intimidating, degrading or insulting behavior, which can often cause mental impairments and, as a result, psychosomatic complaints in the victims .

European Union

The 2001 report on workplace bullying to the European Parliament took stock and made conclusions. The legal situation is inconsistent within the European Union . Occasionally, the creation of a directive against bullying in the workplace has been considered.

Germany

Bullying at work is not in itself a criminal offense in Germany . However, individual acts of bullying are punishable and can be reported. For example, bullying could be a criminal offense of bodily harm , provided that the bullying behavior demonstrably results in corresponding physical impairments. However, a number of actions that - viewed separately - appear to be negligible can, viewed overall, mean bullying with legal consequences ( permanent offense ). However, concrete evidence of bullying is always problematic, as bullies try to cover up their actions. In the event of criminal proceedings , many bullies are therefore not convicted and can then continue to bully undisturbed.

Bullying in the workplace is subject to special legal controls. Employers have a duty to protect their employees from psychological stress. This results from Art. 1 and Art. 2 of the German Basic Law . The employer is obliged to protect the personal rights , health and honor of the employee. In contrast to France and Sweden , there is no special bullying protection law in Germany, but the existing legal provisions, such as the Occupational Safety and Health Act, provide some protection and action options.

In recent years, several court rulings have fundamentally strengthened the rights of the bullied workers and expanded the obligations of employers. The Thuringian regional labor court has ruled that “the employer (can) not only be called upon as a disruptor if he commits or controls the interference himself, but also if he fails to take measures or to organize his business in this way that a violation of personal rights is excluded ".

Bullying can lead to the (extraordinary) termination of the bully without notice . However, it must be remembered that witnesses are often unwilling to testify in court for fear of becoming a victim of bullying themselves. This lack of willingness is particularly true when witnesses are dependent on the bully. Overly long proceedings of more than twelve months are the order of the day at some labor courts and place an additional burden on the victims.

To assert legal claims or labor law sanctions , three elements are required:

  1. concrete description of the individual events;
  2. Interlinking of these events in the context of bullying, i.e. the adequate causal relationship ;
  3. Violation of the legal interests of the bullied or violation of specific contractual obligations.

In this sense, the term bullying is also legally necessary in order to be able to correctly grasp the meaning of a situation. However, a clear legal definition of bullying does not yet exist. Legally relevant individual acts are:

The assignment of meaningless work tasks or work tasks that are far below the qualification of the employee are also part of the relevant actions. This also includes tasks that cannot be managed in terms of time. The efficiency of legal protection varies with these acts. While the successful defense against an unjustified dismissal, transfer or warning is quite easy, it is rather laborious and difficult to enforce in the case of sexual harassment, insult, defamation, defamation, coercion and false suspicion.

The above-mentioned, legally relevant facts in themselves are opposed to those which - viewed as individual acts - have no legal relevance. Which includes:

In these cases, however, it should be noted that a mere criminal complaint is not sufficient, but a criminal complaint is a process requirement and this must be submitted within three months. The public prosecutor then checks whether there is a public interest in prosecuting this offense and, if necessary, refers to the unpromising private legal action . If these legal objections are overcome, it is still unclear whether behavior experienced as bullying has criminal relevance. The social exclusion of a colleague can be regarded as a criminal offense if the behavior of the perpetrator goes beyond what is socially acceptable, such as demonstratively leaving the room or demonstratively ignoring it .

As soon as the employer learns of bullying in his company, he has to fulfill his duty of care . He is obliged to act and must take effective intervention (e.g. employee appraisal, the right to issue instructions, warning, termination, transfer). Under special circumstances he can also dismiss a bullying employee without notice, e.g. B. if damage to health has occurred. If the employer does not act or intervenes ineffectively, the victim in Germany can also claim damages from the employer. The compensation then refers to therapy costs, legal costs, compensation for pain and suffering.

Insofar as a bullying case is a case of discrimination, and in particular if it is a matter of bullying in connection with gender, religion, disability, origin or sexual identity, the victim has considerably extended rights in Germany based on the General Equal Treatment Act (AGG), e.g. B. regarding the burden of proof.

Case law of the Federal Labor Court

The Federal Labor Court (BAG) has called bullying "systematic hostility, harassment or discrimination of employees among themselves or by their superiors". After the General Equal Treatment Act (AGG) came into force, it used the definition of disadvantageous harassment according to Section 3 (3) AGG to describe the term bullying . According to this, bullying is characterized by "undesirable behavior that aims or causes the dignity of the person concerned to be violated and an environment characterized by intimidation, hostility, humiliation , degradation or insult is created".

According to the legal opinion of the Federal Labor Court, an effectively contractually agreed exclusion period (e.g. six months in the public service according to Section 37 TVöD ) generally also applies to claims for damages and compensation due to violation of general personal rights and thus for claims from acts of mobbing-related violations. In doing so, however, the particularities of bullying must be taken into account insofar as an overall view must be made as to whether individual violations of general personal rights represent an overarching systematic approach. Longer past incidents must be taken into account if they are related to the later "bullying" acts.

The decision was based on the fact that an employee had been employed by the employer or his predecessor since 1987 and had submitted that he had been exposed to systematic acts of bullying in various ways in the course of his employment and therefore became mentally unable to work. With the lawsuit, he made claims for damages, compensation for pain and suffering and compensation for personal injury. The state labor court had previously justified its dismissing decision with the failure of the employee to comply with the six-month preclusive period. It therefore only considered individual files that were not more than six months ago when the claims were first asserted.

Selected court judgments

  • BAG, judgment of October 25, 2007: Claims against the employer for bullying.
  • BAG, judgment of May 16, 2007: Claims for damages, compensation for pain and suffering against the employer for bullying; Consideration of previous acts of bullying that were presented before / outside the - here six-month - exclusion period, if these are related to the last acts of bullying.
  • LAG Baden-Württemberg, judgment of June 12, 2006.
  • LAG Thuringia, judgment of June 28, 2005: Basic judgment, compliance with human dignity in the workplace.
  • LAG Thuringia, judgment of April 10, 2001: Basic judgment, bullying of a savings bank department manager through constant harassment and degradation, which resulted in a six-salary demotion.
  • LAG Thuringia, judgment of February 15, 2001: Basic judgment, mobbing as a reason for termination without notice.

Austria

Protection against bullying can result from the employer's duty of care ( Section 1157 ABGB and Section 18 AngG). Victims of bullying can sue for the employer's failure to fulfill their duty of care towards them. If the employer does not immediately fulfill his obligations towards the successful plaintiff , the judgment can be executed . Mobbing can constitute facts that violate the Equal Treatment Act or the Criminal Code . In certain cases, this can lead to claims for damages or penalties for the perpetrators .

The Cyber-bullying is by § 107c Criminal Code punishable.

Selected court judgments

  • OGH (Supreme Court, Austria), decision of November 26, 2012: The employee has a right to the employer taking action and taking the necessary means to protect him from further attacks.
  • OGH, judgment of December 22, 2005: Illness as a result of bullying in the workplace is not considered an occupational disease.
  • OGH, judgment of June 29, 2005: burden of allegation.
  • OGH, judgment of August 26, 2004: The employer's duty of care extends not only to the direct employer, but at least to a certain extent also to the person in whose company the employee is integrated in a dependent manner.

Switzerland

Bullying is viewed under labor law as a violation of personality within the meaning of Art. 328 OR. The employer is particularly obliged to stop the bullying or to issue appropriate instructions to the bully.

literature

  • Argeo Bämayr: The bullying syndrome: diagnosis, therapy and assessment in the context of the ubiquitous psychological violence practiced in Germany. 2012, ISBN 978-3-89966-514-7 .
  • Martina Benecke: Mobbing - Labor and Liability Law . In: Current Law for Practice . Beck, Munich 2005, ISBN 3-406-52971-2 .
  • Marion Binder: Mobbing from a labor law perspective . ÖGB, Vienna 1999, ISBN 3-7035-0774-8 .
  • Axel Esser, Martin Wolmerath: The guide for those affected and their lobbying . 6th edition. Bund-Verlag, Frankfurt am Main 2005, ISBN 3-7663-3638-X .
  • Anka Kampka: Don't be afraid of bullying! Strategies against psychological terror in the workplace. Legal part: Nathalie Brede and Ansgar Brede. Klett-Cotta, Stuttgart 2008, ISBN 978-3-608-86012-2 .
  • Christina Mundlos : Mothers not wanted. Bullying, Sexism and Discrimination in the Workplace. With a foreword by Rita Süssmuth . Tectum Verlag, Marburg 2017, ISBN 978-3-8288-3843-7 .
  • Peter Wickler (Hrsg.): Manual Mobbing-Rechtsschutz . Müller, Heidelberg 2004, ISBN 3-8114-1856-4 .
  • Martin Wolmerath: Mobbing in the focus of jurisdiction . In: The staff council . 9/04, 2004, ISSN  0175-9299 , pp. 327-340. ( PDF; 250 kB )

Web links

Individual evidence

  1. ↑ BAG, decision of January 15, 1997 ( Memento of the original of July 18, 2014 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Az. 7 ABR 14/96, full text = NZA 1997, p. 781. @1@ 2Template: Webachiv / IABot / www.ejura-examensexpress.de
  2. ↑ EU bullying report (PDF file; 188 kB)
  3. ↑ BAG, judgment of May 16, 2007, Az. 8 AZR 709/06, full text, Rn. 58 ( various online versions ).
  4. ^ LAG Thuringia, April 10, 2001 - Az. 5 Sa 403/2000 ( various online versions ).
  5. ^ Bullying. Retrieved January 9, 2020 .
  6. ^ LAG Thuringia, judgment of April 10, 2001 , Az. 5 Sa 403/00, full text.
  7. ↑ LAG Thuringia, judgment of February 15, 2001 , Az. 5 Sa 102/2000, full text.
  8. ↑ ArbG Dresden, judgment of July 7, 2003 ( Memento of the original of January 12, 2011 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Az. 5 Ca 5954/02, full text. @1@ 2Template: Webachiv / IABot / www.betriebsrat.com
  9. ^ Discrimination and Mobbing , German Anti-Discrimination Association, accessed on April 17, 2008.
  10. ↑ BAG, decision of January 15, 1997 , Az. 7 ABR 14/96, full text = BAGE 85, 56 = AP BetrVG 1972 § 37 No. 118 = EzA BetrVG 1972 § 37 No. 133.
  11. ↑ BAG, judgment of October 25, 2007 , Az. 8 AZR 593/06, full text.
  12. ↑ a b BAG, judgment of May 16, 2007 , Az. 8 AZR 709/06, full text.
  13. ↑ BAG, judgment of October 25, 2007 , Az. 8 AZR 593/06, full text.
  14. ^ LAG Baden-Württemberg, judgment of June 12, 2006 , Az. 4 Sa 68/05, full text.
  15. ↑ LAG Thuringia, judgment of June 28, 2005 , Az. 5 Sa 63/04, full text = "Die Personalvertretung" (PersV), Issue 12, 2005 with further articles on the topic of bullying protection.
  16. ↑ LAG Thuringia, judgment of April 10, 2001, Az. 5 Sa 403/2000, full text = NZA-RR 2001, p. 347 ff. ( Various online versions ).
  17. ↑ LAG Thuringia, judgment of February 15, 2001 , Az. 5 Sa 102/2000, full text = NZA-RR 2001, p. 577 ff.
  18. ↑ Federal Law Gazette I No. 112/2015 , in force since January 1, 2017, see Article 12 § 1 for the entry into force, Article 1 Z 48 for the paragraph.
  19. ^ OGH, decision of November 26, 2012 , Gz. 9ObA131 / 11x.
  20. ^ OGH, judgment of December 22, 2005 , Gz. 10ObS105 / 04w.
  21. ^ OGH, judgment of June 29, 2005 , Gz. 9ObA94 / 05x.
  22. ^ OGH, judgment of August 26, 2004 , Gz. 8ObA3 / 04 f.
  23. ↑ OFK-Pellascio, OR 328 N 17
  24. ↑ OFK-Pellascio, OR 328 N 21