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"MOBBING": THE GERMAN LAW OFBULLYINGPhilipp S. FischingertI. INTRODUCTION

Rudeness against, harassment of, and hostilities toward individualemployees have undoubtedly existed at all times and are, therefore,not new phenomena in the workplace.' However, over the last ten tofifteen years, sociologists, psychologists, physicians, and legal scholarshave increasingly focused on such behaviors. In Germany, workplacebullying is known as "mobbing," a term derived from the English verb"to mob" or "to attack."2

In 2000, the German Federal Institute for Occupational Safetyand Health (Bundesanstalt ftir Arbeitsschutz und Arbeitsmedizin)conducted a survey in order to gather more information on thisphenomenon.3 Roughly 4,400 workers from all over Germany,working for different employers in the public and the private sectorwere interviewed and, in addition, the Institute also evaluated thewritten statements of more than 1,300 of these workers. Results shedlight on several aspects of workplace bullying including characteristicsof both the victims and the harassers and some of the consequences ofthese acts. For example, it was noted that 5.5% of the workingpopulation was affected by mobbing in the year 2000, while 11.3% hadbeen affected at some point during their working life. Also worth

f Dr., LL.M. (Harvard), Regensburg, Germany.1. For example: As early as 1921, the Supreme Court of the German Reich(Reichsgericht) had to decide about a claim of an employee that suffered from a bilious colic as aresult of a dispute with his employer. Kollmer, Mobbing [Schikane] im Arbeitsverhaltnis,Arbeitsrechts-Blattei Systematische Darstellung Nr. 121.5 Rdnr. 67.2. Originally this term was used by the ethologist Konrad Lorenz to describe combinedattacks by several animals against a rival or superior enemy; later the physician Peter-PaulHeinemann used it to describe the phenomenon of groups attacking people who don't stick tothe rules set by that particular group. See Mobbing, WIKIPEDIA,http://de.wikipedia.org/wiki/Mobbing (last visited Sept. 10, 2010). See also Mobbing,WIKIPEDIA, http://en.wikipedia.org/wiki/Mobbing (last visited Sept. 10, 2010).3. MARTINA BARBEL MESCHKUTAT & GEORG LANGENHOFF STACKELBECK, DERMOBBING-REPORT: REPRASENTATIONSSTUDIE FOR DIE BUNDESREPUBLIK DEUTSCHLAND 78(2002), available at http://www.baua.de/de/Publikationen/Forschungsberichte/2002/Fb951.html(translated by the author).


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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:153mentioning is the fact that mobbing exists in al l types of workingenvironments and on al l levels of hierarchy, though women are moreoften victims than men, and persons younger than twenty-five years ofage are more often mobbed than older persons. As for the identity ofthose engaged in mobbing, in 38.2% of the cases the supervisor alonewas the one harassing the victim while in 12.8% of the cases the victimwas harassed by a supervisor and a coworker(s). In 20.1% of the casesthe harassers were a group of colleagues, while in 22.3% of the casesone single co-worker was the offender. The typical harasser is a male,in a supervisory position, between the ages of thirty-five and fifty-fourwho has been employed for quite a long time at the company.The consequences for the victims are numerous according to thesurvey: 25.2% of mobbing victims received one or even severalwarnings; 8.2% were transferred to another place of employment;14.8% were terminated and 22.5% of them ended their employmentcontract "voluntarily." After losing their employment, 11.4% werejobless, a third of them for longer than two years. Furthermore,98.7% of the victims felt that their experience directly affected theirpersonal, private, or business life (manifesting itself in mistrust, loss ofmotivation, or nervousness) while 43.9% of victims got sick as a resultof the harassment, roughly half of them for a period longer than sixweeks (20.1%).

In addition, because the victim, as a result of the harassment isoften unfit or unwilling to work, mobbing leads to reducedproductivity, creates costs for medical treatment, and, thereby, harmsthe national economy.4

Despite the increased public interest in workplace harassment,demonstrated by this survey, unlike French law,5 German law has nospecial rules dealing with mobbing. This article describes howGerman law deals with the problems arising from mobbing in theworkplace. The article seeks to ascertain whether the generalprovisions of the German Civil Code (BiUrgerliches Gesetzbuch) aresufficient to tackle these problems or if additional statutoryprotections should be enacted. After defining the term "mobbing" in(Section I), I will demonstrate which preconditions must be fulfilled inorder to establish a claim for mobbing (Section II). While in SectionIII the legal consequences of mobbing (concerning the substantive

4. E.g., Brigitte Kerst-WOrkner, Das schleichende Gift "Mobbing"und die Gegenarznei,7ARBEIT UND REcHT 251, 254 (2001) (estimating the harm for the economy sums up to fifty

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WORKPLACE BULLYING IN GERMANYlaw) will be described in detail, in Section IV, I will establishprocedural problems arising from the enforcement of mobbing claims.Section V will summarize the main results.

In the following text, the terms "mobbing," "workplace bullying,"and "harassment" will be used synonymously; all refer to the behaviordescribed in Section II. For reasons of clarity, only the masculinegrammatical forms will be used. Questions regarding the criminal lawaspects of mobbing will not be addressed in this paper.6

II. DEFINITION AND DISTINCTIONSA. CourtDefinitions

German law lacks a statutory definition of "mobbing." To makesure that legal decisions are predictable it is up to the courts and legalscholars to define the term on their own. In an early decision, theThuringian Higher Labor Court (LandesarbeitsgerichtThiiringen)defined "mobbing" as "continued and coordinated behavior patternsat the workplace that intend to harass or discriminate against acoworker or subordinate in order to achieve illegal goals and that, atleast taken together, violate the right of personality, dignity or healthof the victim.' Conversely, the German Federal Labor Court(Bundesarbeitsgericht) first used a much shorter definition anddescribed mobbing as "systematic hostilities, harassment ordiscrimination, either among co-workers or by a supervisor."8However, since the enactment of the German General Treatment Act(Allgemeines Gleichbehandlungsgesetz), the German Federal LaborCourt defines "mobbing" in conformity with section 3, paragraph (3)General Treatment Act that stipulates:

Harassment shall be deemed to be a form of discrimination, whenunwanted conduct related to any of the grounds referred to insection 1 takes place with the purpose or effect of violating thedignity of a person and of creating an intimidating, hostile,degrading, humiliating or offensive environment.However, one has to point out that the German Federal Labor

Court refers to this definition only insofar as it describes "mobbing"

6. Cf ANJA FEHR, MOBBING AM ARBEITSPLATZ (2005).7. Landesarbeitsgerichte [LAG] [Labor Court of Appeals] Feb. 15, 2001, 133 NeueZeitschrift ffir Arbeitsrecht-Rechtsprechungsreport [NZA-RR] 577 (579), 2001 (Ger.) (in thefollowing all translations are the author's ow n unless stated otherwise).

8. Bundesarbeitsgericht [BAG] [Supreme Labor Court] Jan. 15, 1997, Neue Zeitschrift for

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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:153behavior. This does not mean that the rules regulating "mobbing" areapplicable only if the behavior was motivated by a prohibited groundfor discrimination (like race, gender, or age), so harassing someonebecause one does not like the same soccer club would also beconsidered "mobbing."Conceptually one can distinguish between three forms ofbullying:9(1) mobbing in a narrower sense = mobbing between co-workers that are on the same level of hierarchy(2) bossing = the employer or a supervisor harasses asubordinate employee(3) staffing = a subordinate harasses an employer or asupervisorNaturally, bossing and mobbing in a narrower sense are the mostcommon forms of bullying1" whereas staffing is an exceptional eventand--as far as my research shows--court decisions dealing with such acase do not exist in Germany.

B. No Legal TermIt is undisputed among German scholars and courts that

"mobbing" is not a legal term providing a basis for a claim.11 Rather,it is a term describing a complex series of events that may in theirentirety entitle the victim to either claim damages or yet seekinjunctive relief for example. Instead of seeking a precise definition itis therefore more useful to describe the general characteristics thatconstitute what we understand as mobbing.C. Characteristics

Essentially one can name three different characteristic elementsof workplace bullying. All of them describe preconditions that mustbe fulfilled in order to establish a successful claim based on mobbing.

9. Volker Rieble & Steffen Klumpp, Die Mobbing-Klage, 2002 FACHANWALTARBE1TSRECHT 307.10. Cf. the numbers in sub. I. Introduction.11. BAG Oct. 25, 2007; Rieble & Klumpp, supra note 9, at 308; Hartmut Lange, DieHandhabung des Phdnomens "Mobbing" im Arbeitsrecht, SAMMLUNG ARBEITSRECHTLICHER

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WORKPLACE BULLYING IN GERMANY1. Mobbing as a Combination of Single Events

First of all, mobbing must be seen as a combination of singleevents. In this, the focus is not on one single act that may, takenalone, be banal, but on the overall context shaped by several singleevents occurring over a longer period of time and are systematicallyconnected by the goal to harass the victim.12 Whereas one single eventmay be criminally punishable (e.g., an insult or battery) it does not, onits own, create an intimidating, hostile, degrading, humiliating, oroffensive environment that is, in reference to section 3, paragraph (3)of the General Treatment Act, necessary to establish a mobbingclaim."3 Instead, such events must appear as the links of a chain. 4 Toascertain a claim based on mobbing one has, therefore, to look at the"bigger picture." Moreover, the Federal Labor Court requirescontinuity between the single events to establish a workplace bullyingclaim.15

2. Violation of the Victim's RightsSecond, this behavior must have the potential of violating the

victim's rights or legal interests. Typically workplace bullying mayendanger the victim's health, right of personality, and property rights,or financial interests. As far as the victim's health is concerned,mobbing may cause physical and psychological problems ranging frominsomnia to depression, and extending to cardiovascular diseases andsuicide.16 However, psychological harm will entitle the victim todamages only if it attains a certain degree of gravity.'7

The right of personality is the right of each person to freelydevelop his personality and to be respected as a unique human being.It is interpreted by the German Federal Labor Court and the FederalSupreme Court (Bundesgerichtshof) as deriving from section 2,

12. BAG May 16, 2007, NZA 1154, 2007; LAG Apr. 10, 2001, BETRIEBS-BERATER 1358,2001; LAG, Oct. 16, 2001, NAZZ-RR 121, 2002; Martina Benecke, Mobbing:Pers6nlichkeitsschutz und Haftung des Arbeitgebers, RECHT DER ARBEIT 357, 359 (2008).Richard Richardi & Philipp S. Fischinger, Annotation, Employment Law I, in STAUDINGER,BGB, 611, mn. 115.

13. Although this section is not applicable directly as it only deals with discriminatorybehavior one can refer to it in the context of mobbing as the situation is similar as far as theharasser's behavior--not his motivation--is concerned.14. LAG Mar. 3, 2002, 2002 NAZ-RR 257, 2002; Stefan Sasse, Rechtsprechungsiibersichtzum Mobbing,BETRIEBS-BERATER 1451 (2008).

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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:153paragraph (1), 1 German Constitution (Grundgesetz)." This right canbe violated by insults or social exclusion for example. However, it isoften very difficult to distinguish between a despicable but not illegalbehavior that must be tolerated in a "free society" (in particulardiscourteousness) on the one hand and behavior that has to bedeemed illegal on the other. As one legal scholar expressed it: whatis required is evidence of systematic attacks against the victim'spersonality that are so serious that they are irreconcilable with humandignity.' 9 However, in the end it is up to the judge to evaluate thefacts of the case at hand by taking all factors into account.The victim's property or financial interests may be endangeredeither directly (e.g., damaging or stealing private belongings) orindirectly, in particular if the victim loses his job because of theworkplace bullying and is unable to find a new job that is as well paidas the old one.'

3. Mobbing as a Unidirectional ProcessAccording to German court decisions and legal scholars, mobbingcan also be, by definition, a "one-way street" as it is characterized by aclear distinction between the victim and the offender(s).2" Therefore,

under German law, situations in which actors exchange mutual andreciprocal insults do not fall into the scope of workplace bullying.And so , in evaluating an alleged harassment situation, one has to takeinto account the victim's previous behavior. If the victim's previousbehavior is said to have provoked the offender, this may present anobstacle for the mobbing claim. Yet on the other hand, can aprovocation, even one that took place long ago, really "justify"harassing acts (and, thereby, foreclose the possibility of mobbingagainst the former agitator) years later?

18. Section 2 para. (1) of the German Constitution states: "Everyone has the right to thefree development of his personality insofar as he does not violate the rights of others or offendagainst the constitutional order or the moral code." Section 1 para. (1) of the GermanConstitution states: "The dignity of man is inviolable. To respect and protect it is the duty of allstate authority." Basic Law for the Federal Republic of Germany, WIKISOURCE,http://en.wikisource.org/wiki/Basic_Law_for_the_Federal-Republic_of-Germany (last visitedSept. 10, 2010).19. Hohmann, supranote 11, at 531.20. Cf.Section I.21. BAG May 5, 2007, NAZZ-RR 1154; LAG Apr. 10, 2001, BETRIEBS-BERATER 1358,2001; LAG Oct. 2, 2007; Martina Benecke, "Mobbing" im Arbeitsrecht,NEUE ZEITSCHRIFF

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WORKPLACE BULLYING IN GERMANYD. Formsof Workplace Bullying

Workplace bullying can take different forms. Basically one candistinguish between harassing acts that use the means of managementprerogatives provided for in employment law (e.g., unjustifiedwarnings, unjustified denial of promotion, instructions that areimpossible to be carried out) and those that rely on interpersonalbehavior, ranging from social exclusion and insults, to assaults, andeven battery.22 Whereas the first type can be used only by theemployer and a supervisor that has authority over the worker,coworkers are able to harass only by means of interpersonal behavior.

E. SynthesisColloquial language often hastily classifies unfriendly single

events as mobbing. In the legal context, however, not every spitefulact establishes a claim based on mobbing. Rather the bullying actsmust have occurred over a longer period of time, attained a certaindegree of gravity, and appear to be, as links in a chain, parts of asystematic harassment.

III. LEGAL CONSEQUENCESAs mentioned above (Section I) , German law has no special

statutory provisions dealing with workplace bullying. Therefore, thevictim is limited to the general employment and civil law protections.However, these provide various potential recourses (or remedies) aswill be detailed.

A. Injunctive Relief1. Injunctive Relief Against the Employer

The employer has the duty to take care of the rights and legalinterests (in particular health, right of personality, and property) of hisemployees, section 241, paragraph (2) German Civil Code2 3 andsection 75 Work Constitution Act of 1972(Betriebsverfassungsgesetz).4 If the employer infringes these rights or

22 . Rieble & Klumpp, supra note 21, at 379.23. "An obligation may also, depending on its contents, oblige each party to take account

ofthe rights, legal interests and other interests of the other party."24 . Paragraph (1): "Employer and the works council have to ensure that all persons

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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:153interests, the employee can seek injunctive relief and compel theemployer to refrain from further "mobbing acts" (sections 611,25 241,paragraph (2) German Civil Code).

But section 241, paragraph (2) of the German Civil Code isinterpreted even more broadly in that it obliges the employer to:(i) (actively) protect the employee against the behavior ofsupervisors, co-workers and third persons on which heexercises influence; and,(ii) organize his company in a way that reduces the possibilityof such violations. 6The employer violates the first of these duties if he does not takethe appropriate measures against workplace bullying when madeaware of it."7 In this case the victim may demand that the employertake action (Einwirkungspflicht,or duty to intervene). 8 This actioncan range from mere reprimands, warnings, or transfers (to anotherplace of employment) to terminations with or without notice for theoffender.29 However, the employer in general has wide discretion inthe choice of measures he wants to take. Because of this, the victimcan demand a specific action only if this sanction is actually the onlyone that would adequately protect him and is at the same time lawfuland reconcilable with the employer's own interests.31 For instance, thetermination of the offender's employment contract is, in general,possible only after he has been warned at least once before.32As far as the second of these duties is concerned, one has to takeinto account that it is impossible to organize a company in a way thatentirely precludes the possibility of workplace bullying.33 Therefore, itis difficult to name specific measures of precaution that must be takenby the employer in order to accomplish this. However, it seems

identity." Paragraph (2): "Employer and the works council have to protect and further the freedevelopment of the personality of employees working on the premises. ... "25. Paragraph (1): "By means of a service contract, a person who promises service isobliged to perform the services promised, and the other party is obliged to grant the agreedremuneration."26. BAG May 16, 2007, NZA 1154, 2007; BAG Oct. 25, 2007, NZA 223, 2008; LAG Apr.10, 2001, BETRIEBS-BERATER 1358 (2001); Kerst-Wtirkner, supranote 4, at 258.27. BAG May 16, 2007, NZA 1154, 2007.28 . Rieble & Klumpp, supra note 11, at 308.29. Hohmann, supranote 11, at 532; Rieble & Klumpp, supra note 21, at 37930. BAG Oct. 25, 2007; Sasse, supranote 14, at 1452; Lange, supranote 11, at 288.31. Lange, supra note 11, at 288. In the end this is orientated at section 12 III GermanGeneral Treatment Act that stipulates that an employer shall "take appropriate, necessary andreasonable action to prevent any further discrimination, for example warning, relocating,transferring or terminating" of an employee that violated the prohibition of discrimination.32. Cf. LAG Jan. 27, 2000, 9 Sa 473/99, ARBEITSRECHT

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WORKPLACE BULLYING IN GERMANYreasonable to oblige the employer to design his company in a way thatpromotes conflict resolution. And so this duty would be violated if ,for instance, vague organizational and hierarchical structurespromoting disputes between employees were created. 4

2. Injunctive Relief Against the OffenderIf the offender is a supervisor or a coworker, the victim has no

contract claims against him, as a contractual relationship exists onlybetween the employee and the employer. However, if the mobbingbehavior violates the victim's health, right of personality, or property,the victim can sue for injunctive relief based on an analogousapplication of section 1004, paragraph (1) of the German Civil Code.35In addition, in cases of libel or false statements, section 1000,paragraph (1) German Civil Code gives the victim a right to demand a(public) withdrawal of these comments.36

B. DamagesProbably the most important remedy available to targets of

bullying are claims for damages. In this regard, one has to distinguishbetween: (1) Contractual damage claims against the employer (sub1), (2) tort claims against the employer (sub 2), (3) contractualdamage claims against coworkers/supervisors (sub 4), and (4) tortclaims against coworkers/supervisors (sub 5). The differentiationbetween tort and contractual damage claims is crucial as theremedies-that is the damages available--differ in one importantaspect as will be detailed.

34. Kerst-Wiirkner, supra note 4, at 258; not decided by BAG May 16, 2007, NZA 11542007.35. "If the ownership is interfered with by removal or retention of possession, the ownermay require the disturber to remove the interference. If further interferences are to be feared,

the owner may seek a prohibitory injunction." Although section 1004 paragraph (1) of theGerman Civil Code refers only to property, it is generally accepted that it is applicableanalogously on absolute rights like health or the right of personality. OTTO PALANDT & PETERBASSENGE, BORGERLICHES GESETZBUCH 1004, n.m. 4 (69th ed . 2010), with further

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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:1531. Contractual Damage Claims Against the Employer

Section 280 of the German Civil Code3 7 stipulates a duty to paydamages if a contracting party intentionally or negligently breaches acontractual duty; in addition, section 241, paragraph (2) German CivilCode obliges each party to protect the rights and legal interest of theother party. There are three potential ways a mobbing victim cansuccessfully establish a contract claim against his employer forworkplace bullying. This is easier if the employer himself harassedthe employee. More difficulties arise if the offender is not theemployer but rather a coworker or a supervisor. In such a case theemployer is liable only if either this behavior is attributed to theemployer or if the employer violated his duty to protect the employeeand to organize the workplace in a way that prevents mobbing. In anycase the victim may ask for damages only if the behavior was thecause of the harm suffered and if the offender's actions are culpable,that is, either intentional or negligent. 8a. Bossing

The situation is rather easy if the employer himself harasses theemployee ("bossing"), for example by giving unlawful or inexecutabledirectives or by insulting or by socially excluding the employee. Inthis case the employer is, of course, liable for the legal consequences.39Actions of corporate entities or "legal persons" (limited liabilitycompanies, public limited companies) as well as those of managers ormembers of the managing or supervisory board are, by analogy withsections 31, 89 of the German Civil Code,4 considered as acts of theemployer itself and as a result, the employer is therefore liable forthem, too.4"

37. "I f the obligor breaches a duty arising from the obligation, the obligee may demanddamages for the damage caused thereby. This does not apply if the obligor is not responsible forthe breach of duty."38. However, contrary to section 826 of German Civil Code it is sufficient that the offenderacts intentionally or is negligent with regards to his action; it is not necessary that the fault refersto the victim's harm, too.39. Kerst-Wuirkner, supranote 4, at 258.40 . Section 31 German Civil Code: "The association is liable for the damage to a thirdparty that the board, a member of the board or another constitutionally appointedrepresentative causes through an act committed by it or him in carrying out the business withwhich it or he is entrusted, where the act gives rise to a liability in damages." Section 89 IGerman Civil Code: "The provision of section 31 applies with the necessary modifications

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WORKPLACE BULLYING IN GERMANYb. Attribution to the Employer

Mobbing behavior by supervisors and coworkers can beattributed to the employer only if the preconditions of section 278 ofthe German Civil Code are fulfilled.42 This requires a pertinentrelationship between the mobbing behavior on the one hand and thetasks given to the supervisor or coworker by the employer within theirexisting employment relationship on the other. In other words,mobbing behaviors can be attributed only if the offender is acting inplace of the employer, and a link to the employment relationship ofthe victim can be established.43 This is the case only with instructions,warnings, and other disciplinary actions, but not with harassing actsthat do not affect the employment status of the victim. Therefore,only acts of supervisors of the first type but not of the second can beattributed to the employer; and acts of coworkers cannot be attributedat all as they do not ac t in place of the employer.' For example, if asupervisor (or a coworker) "simply" insults the victim or commitsbattery, an attribution is not possible because such acts do not affectthe victim's legal employment status. On the other hand, anattribution to the employer is possible if , for example, the victim iswarned by a supervisor; in this case the victims' employment status isaffected as the warning is recorded in his personnel file.

c. Duty to Protectthe EmployeeAlthough acts by coworkers and supervisors that do not affect the

victim's employment status cannot be attributed to the employeraccording to section 278 of the German Civil Code, the employers arestill liable if he violated his duty to (actively) protect the employeeagainst the behavior of supervisors, coworkers, and third persons onwhich the employer exercises influence (section 241, paragraph [2]German Civil Code).45 In particular, the employer has to organize hiscompany in a way that reduces the likelihood of mobbing and,

42 . "The obligor is responsible for fault on the part of his legal representative, and ofpersons whom he uses to perform his obligation, to the same extent as for fault on his own part..

43. BAG May 16, 2007, 8 AZR 709/06, NZA 1154, 2007; BAG Oct. 25, 8 AZR 593/06, NZA223, 2008; Sasse, supra note 14, at 1452; Rieble & Klumpp, supra note 9, at 309; Kollmer, supra

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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:153importantly, in day-to-day practice, he must take the appropriate stepsagainst any workplace bullying of which he is aware.46

d. VariousForms of ContractualDamage ClaimsFirst of all, the employer has to pay materialdamages. This mayinclude various types of damages: If the victim suffered harm to his orher health the employer has to pay all costs for medical treatment 47

including, if necessary, the costs for psychiatric therapy. During thesetreatments, cures, and therapies, the victim is often unable to work.Under German law the victim is entitled to sick pay, equivalent to100% of his remuneration, paid by his employer "only" for up to sixweeks, section 3, paragraph (1) Continuation of Remuneration Act 48(Entgeltfortzahlungsgesetz). Afterwards he is only entitled to asickness allowance (Krankengeld, sections 44 et seq. German SocialSecurity Code V [SGB V]) amounting to a maximum of 70% of hisremuneration. The debtor of this claim is not the employer, but thesocial insurance.49 To compensate this material disadvantage thevictim may claim the difference between his salary and this sicknessallowance.If the victim's right of personality" was violated the employer isnot only obliged to withdraw or correct any insulting or humiliatingstatements, but he may also have to pay for any material damagesarising out of these statements (e.g., the employee was unable to finda new job because his reputation suffered).If the victim was forced to leave the company and terminate hisemployment contractwith or without notice, he may also be entitled to

46 . BAG May 16, 2007, NZA 223, 2008; Benecke, supra note 12, at 359; for more details seeIII.A.1.47. Rieble & Klumpp, supranote 9, at 310.48. "Should an employee be prevented from working due to an incapacitation for which heis not at fault, he shall not lose his claim to remuneration for the time of his incapacitation for aperiod of up to six weeks."49 . In general an employee is automatically insured in case of sickness. The socialinsurance has, for example, to pay the costs of medical treatments. Moreover, an employee thatis unfit to work due to illness is entitled to sickness allowance, sections 44 et seq. German SocialSecurity Code V. As mentioned, the allowance amounts to a maximum of 70% of his regularremuneration, section 47, paragraph (1) of the German Social Security Code V. In general, thesickness allowance is not time-limited; however, if the unfitness to work results from the illness,his claim is limited to seventy-eight weeks within three years, section 48, paragraph (1) of theGerman Social Security Code V. An employee is entitled to sickness allowance also, if he has totake care of his own sick child as long as the child is younger than twelve years old; however, inthis case he can claim sickness allowance only for ten (twenty if he raises his child alone) days

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WORKPLACE BULLYING IN GERMANYdamages for the loss of his job and the cost of applying to new jobs,section 628, paragraph (2) German Civil Code.51

If either the victim's health or sexual self-determination washarmed, he or she is entitled to contractual damages for pain andsuffering, section 253, paragraph (2) German Civil Code.52 In practicedifficulties arise when it is necessary to quantify the damages for painand suffering. Some courts took the victim's monthly wage as acriterion and multiplied it by the number of months the workplacebullying took place.53 However, this is not convincing as it necessarilyvalues the health or sexual self-determination of, for instance, a well-paid personnel manager higher than that of a low-income janitor;apart from that, the idea of damages for pain and suffering is tocompensate and satisfy the victim for harm suffered"4 -- and theamount of money required to achieve that is independent of thevictim's monthly wage. Because of that, the amount of damages forpain and suffering has to be determined for every particular caseindividually.5 Criteria used for this determination are first andforemost the character and intensity of the impairment and the degreeof fault. As a result, a coworker that harassed a subordinateintentionally has to pay more damages for pain and suffering than anemployer who neglected to fulfill his duty to organize his company ina way that reduces the possibility of such workplace bullying.56

e. CausationThe victim is entitled to material damages and damages for pain

and suffering only if it was the harassment that caused these damages(causation).7 If this is contested by the employer, then in thisparticular case, the onus of proof lies with the employee, which, inpractice, often causes a lot of problems as will be explained.

51. For more details see III.C.5.52. "If damages are to be paid for an injury to body, health, freedom or sexual self-determination, reasonable compensation in money may also be demanded for any damage thatis not pecuniary loss."53. ArbG Nov. 6, 2000; ArbG Apr. 5, 1990, BETRIEBS-BERATER 1562, 1990; LAG Apr. 3,1991, NZA 509, 1992.54 . Bundesgerichtshof [BGH] [Federal Court of Justice] July 6, 1955, GSZ 1/55,Entscheidungssammlung des Bundesgerichtshofs in Zivilsachen [BGHZ] 18, 149; BGH Nov. 15,1995, Neue Juristische Wochenschrift [NJW] 861, 1995.

55. Benecke, supra note 21, at 231; Rieble & Klumpp, supra note 9, at 310; Rieble &Klumpp, supra note 21, at 378.56. If both the employer and a colleague are liable, they will be a joint and several liability.

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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:1532. Tort Damage Claims Against the Employer

a. ClaimsIf the employer, intentionally or negligently, unlawfully injuresthe life, health, or right of privacy of an employee, the employee has atortious damage claim, according to section 823, paragraph (1) of theGerman Civil Code.An employer is tortiously liable for acts committed by one ormore of his employees only according to section 831, paragraph (1) ofthe German Civil Code.59 Section 831 of the German Civil Coderequires that the harassing employee (i) be a person that is used bythe employer to perform a task for him and (ii) caused the damage"when carrying out the task" (vicarious agent, Verrichtungsgehilfe).Similar to section 278 of the German Civil Code this is the case onlywith actions that affect the employment status of the victim but notwith "mere" insults, hostilities, and harassing acts. Therefore, only asupervisor can be a vicarious agent and only insofar as he issuesdirectives or status-related orders. Apart from that, neithersupervisors nor coworkers are vicarious agents.Even if a supervisor acts in a specific situation as the vicariousagent the employer can still escape a tortious liability by exculpatinghimself according to section 831, paragraph (1), sentence (2) of theGerman Civil Code.6 To do so , the employer must have exercisedcare in the selection and monitoring of the supervisor and the burdenof proof will lie with the employer.61

58. "A person who, intentionally or negligently, unlawfully injures the life, body, health,freedom, property or another right of another person is liable to make compensation to theother party for the damage arising from this." Kollmer, supra note 1, at rin. 73. In such casesthe employee may also have claims based on section 823, paragraph (2) of the German CivilCode and section 826 of the German Civil Code; however, as these sections typically do notprovide any other claims than section 823, paragraph (1) of the German Civil Code does, I willnot go into more detail here. Section 823, paragraph (2) of the German Civil Code provides:"The same duty [as the one established by para. (1)] is held by a person who commits a breach ofa statute that is intended to protect another person. If, according to the contents of the statute, itmay also be breached without fault, then liability to compensation only exists in the case offault." Section 826 German Civil Code stipulates: "A person who, in a manner contrary topublic policy, intentionally inflicts damage on another person is liable to the other person tomake compensation for the damage."59. "A person who uses another person to perform a task is liable to make compensationfor the damage that the other unlawfully inflicts on a third party when carrying out the task.Liability in damages does not apply if the principal exercises reasonable care when selecting theperson deployed and, to the extent that he is to procure devices or equipment or to manage thebusiness activity, in the procurement or management, or if the damage would have occurredeven if this care had been exercised."60. See supranote 61.61. However, in the public service the employer is tortiously liable following sections 839

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WORKPLACE BULLYING IN GERMANYb. Types of Damages

In principle tort law offers the victim the same types of damageclaims as contract law.62 However, there is one important difference:tort law is favorable for the victim insofar as it offers damagesfor painand suffering not only if the victim's health or his right to sexualdetermination was harmed, but also if the offender harmed thevictim's right of personality. The Federal Labor Court and theFederal Supreme Court deduce this right from sections 2, paragraph(1) of the German Constitution63 and classify it as an "absolute right"in terms of section 823, paragraph (1) of the German Civil Code, thatis: it is a right enforceable against everyone.'4 However, contrary toother absolute rights protected by section 823, paragraph (1) of theGerman Civil Code, it is a so-called "open right," which means that nopresumption for the unlawfulness of an impairment exists; rather theunlawfulness has to be determined in each individual case bybalancing the contradicting interests.65 For example, the assignmentof inferior work (a supervisor orders a lawyer to do janitor work) mayimpair the right of personality; but this is unlawful only if it ismotivated by the wish to wear down the employee (and not, forexample, if the employer is in a predicament that requires the order).6'A major criterion in this balancing test is the gravity of impairment tothe right of personality. A violation of the right of personality givesrise to a claim for damages for pain and suffering only if it is such asevere impairment that the damages are necessary to compensate andsatisfy the victim.67

62. See supraIII.B.l.d.63. Section 2, paragraph (1) of the German Constitution: "Everyone has the right to thefree development of his personality insofar as he does not violate the rights of others or offendagainst the constitutional order or the moral code." Section 1, paragraph (1) of the GermanConstitution: "The dignity of man is inviolable. To respect and protect it is the duty of all stateauthority." Basic Law for the Federal Republic of Germany, WIKISOURCE,http://en.wikisource.org/wiki/Basic-Law for_the_Federal-Republic.of-Germany (last visitedSept. 10, 2010).64. BVerfG Mar. 8, 2000, 1 BvR 1127/96, NJW 2187, 2000; BGH Nov. 15, 1994, NJW 1995,861; BGH Dec. 12, 1995, NJW 985 (987) 1996; BGH Dec. 1, 1999, NJW 2195 (2197) 2000.

65. BAG May 16,2007, 8 AZR 709/06, NZA 1154, 2007; Rieble& Klumpp, supranote 21, at371; Benecke, supranote 12, at 363.66. LAG Feb. 15, 2001, NZA-RR 347, 2001; Benecke, supra note 21, at 230.

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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:1533. Synthesis (Damages Against the Employer)

The employer has to pay material damages under bothcontractual violations and under tort law. Damages for pain andsuffering are available under contract law only if the victim's health orsexual self-determination was harmed whereas, under tort law, thevictim may also claim damages for pain and suffering if his right ofpersonality was harmed.

4. No Contractual Damage Claims Against the HarassingCoworker/Supervisor

In some cases in which the offender is a supervisor or coworker,the victim may be interested in not only suing the employer, but alsothe offender himself (for instance if the employer is insolvent or insituations in which it is unclear if the behavior of the coworker isattributed to the employer). However, section 280 of the GermanCivil Code68 provides for contractualdamages for breach of duty onlyif a contract exists between the claimant and the party against whomhe asserts the claim. As no contractual relations exist betweencoworkers or workers and their supervisors, section 280 of theGerman Civil Code does not establish a basis for a claim. 69 Thereforethe victim does not have any contractual damage claims againstcoworkers/supervisors.

5. Tort Damage Claims Against the HarassingCoworker/Supervisor

a. Life, Health,Property,Right ofPersonalityA supervisor or coworker who intentionally or negligently and

unlawfully injures the life, health, property, the right of personality ofan employee is subject to a tortious liability pursuant to section 823,paragraph (1) of the German Civil Code. When this recourse isavailable, it applies in the same way as the tortious liability of theemployer."

68 . "If the obligor breaches a duty arising from the obligation, the obligee may demanddamages for the damage caused thereby. This does not apply if the obligor is not responsible forthe breach of duty."69. Holger Sagmeister, (iberdie rechtlichenKonsequenzen von Mobbing und das Recht amArbeitsverhiiltnis,JURISTISCHE ARBEITSBLATMER 207, 209 (2008);

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WORKPLACE BULLYING IN GERMANYb. Job Loss

In situations in which the victim loses his job because ofharassment by a supervisor or coworker, the question arises as towhether the victim has grounds for a tort claim against the offenderbased on the loss of employment. What happens, for instance, when asupervisor, who has the authority to do so , dismisses the victim orwhen a demoralized and desperate victim, who sees no otheralternative, terminates the employment contract in order to evadefurther harassment? In this context two different ways to establishsuch a claim have to be considered.

ii. Section 823, Paragraph (1) of the German Civil CodeThis section explicitly enumerates a number of protected rights

(e.g., life, health) but also refers to "another right." As the right tokeep a job is not mentioned in the enumeration it can be protected bysection 823, paragraph (1) of the German Civil Code only if it isconsidered to be "another right." However, it is undisputed that notall rights and legal interests fall within the scope of this term because acomparison of the enumerated rights shows that these are rights thatare "absolute," that is they are protected universally against everyone(for instance life, property, etc. . . .). Therefore, courts and legalscholars agree that a claim can be established pursuant to section 823,paragraph (1) only if the violated right was an absolute right.71 Anabsolute right is characterized by the fact that it is protected not onlyagainst individual persons (for example, the other contracting party)but against all other persons. The issue as to whether the employeehas an absolute right to keep his job is controversial.

Scholars supporting this interpretation point to the fact that theemployment relationship is strongly protected by various legalstatutes and is, therefore, similar to the enumerated rights.7" It is truethat, as soon as the employment relationship is established and certainpreconditions are fulfilled, under German law the employee isprotected against unfair dismissals by the employer. The employeetherefore has a right to keep his job and this must be upheld by theemployer. However, this right exists only in the employmentrelationship, that is, between an employee and an employer. The

71. Spindler, Schadensersatzpflicht, BECK'SCHER ONLINE KOMENTAR (BeckOK/BGB), 823, mn. 72 , 823 B mn. 124 (2007).

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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:153same is true for all other rights arising from the employmentrelationship (e.g., the wage claim naturally is directed against theemployer only). As the rights enjoyed by the employee in theemployment relationship are "only" a bundle of contractual rightsagainst the employer, but not against other persons, there is aconvincing argument not to qualify the right to keep one's job as anabsolute right. 3 A consequence of that interpretation is that theharassment victim cannot establish a tortious damage claim based onsection 823, paragraph (1) of the German Civil Code based on his lossof employment.

ii. Section 826 of the German Civil Code 4The other recourse of the harassment victim is, therefore, section826 of the German Civil Code. Contrary to section 823, paragraph (1),section 826 of the German Civil Code protects not only absolute rightsbut also, for example, the victim's earning potential. 5 However, aclaim can be based on section 826 of the German Civil Code only if (i)the damaging act was contrary to public policy and (ii) the offendernot only intended to act but also to cause the specific type of damagethat the victim wants to be compensated for.7 6 Workplace bullying is

without doubt a violation of public policy as it is, at face value,incompatible with the sense of decency of all fair-minded persons.77However, problems regularly arise in regard to the secondprecondition: In many cases in which the victim "voluntarily"resigned from his job, the offender "only" wanted to insult the victimand let him suffer but did not intend this outcome with its potentiallydisastrous economic consequences. Even if, in fact, the offenderintended to cause the incurred harm, the victim must still prove themalicious intention. Therefore, even in cases in which a supervisordischarges the victim as perhaps the last act of harassment, the victimmay have difficulties succeeding with his claim pursuant to section 826of the German Civil Code.

73. Oberlandesgericht [OLG] [higher regional court] Jan. 23, 2003, Neue JuristischeWochenschrift [NJW] 1673, 2003; Landgericht [LG] [regional court] Oct. 26 , 1999, NJW-RR 831,2000; Sagmeister, supra note 71, at 210; not decided by BAG June 4, 1998, NJW 167, 1999;Richardi & Fischinger, supranote 12, at 1116.74 . "A person who, in a manner contrary to public policy, intentionally inflicts damage onanother person is liable to the other person to make compensation for the damage."75. OTTO PALANDT & HARTWIG SPRAU, BORGERLICHES GESETZBUCH 826, mn. 1 (69thed. 2010).76. Gerhard Wagner, Comment, in MONCHENER KOMMENTAR ZUM BGB 826, ran. 24

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WORKPLACE BULLYING IN GERMANYiii. Summing Up (Tort Damage Claims Against the Harassing

Coworker or Supervisor)If the offender is a coworker or a supervisor the victim is limitedto tort claims. In cases of violations of health, life, property, or his

right of personality, the victim can claim damages. However victimsfacing ongoing harassment who see no alternative other than"voluntarily" resigning from the job can be entitled to damages onlypursuant to section 826 of the German Civil Code whosepreconditions are often not fulfilled or are, at least, very difficult toprove.

c. Types of TortiousDamagesi. Material Damages

As the liable employer, the offender has to pay material damages,in particular for medical treatment including rest or treatment costsand, if necessary, psychiatric therapy. Moreover, the victim may claimthe difference between his or her salary and the sickness allowancepursuant to sections 44 et seqq. of the German Social Security Codev. 7 8

ii. Withdraw or Correct StatementsIf the offender violated the victim's right of personality he has to

withdraw or correct any insulting or humiliating statements. If it isnecessary to restore the victim's reputation, this should be done in away that ensures that all people aware of the violation may have theopportunity to become aware of the withdrawal or correction.

iii. Damages for Pain and SufferingIf the offender violated the victim's health or sexual self-

determinationhe has to pay damages for pain and suffering. The sameis true for a violation of the victim's right of personality. The victim'sclaim against the harassing coworker or supervisor may be higher thanthe one against the employer that negligently did not fulfill his duty toorganize his company in a way that reduces the risk of mobbing, asone of the most important criteria to determine the amount ofdamages for pain and suffering is the degree of the offender's fault.

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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:1536. Summing Up (Damages AgainstEmployer/Coworker/Supervisor)

Against the employer the victim may have contractual as well astort claims whereas a supervisor or coworker can be exposed only totortious claims.The victim has a contractualdamage claim against the employeronly if either(i) the employer was the harasser (bossing),79 or(ii) the offender's behavior can be attributed to the employerthat is the case only with harassing acts of supervisors thataffect the victim's employment status,' or(iii) the employer violates his duty to (actively) protect theemployee against the behavior of supervisors, coworkers,and third persons on which he exercises influence, section241 para. (2) of the German Civil Code.81Tortious claims against he employer may be asserted if either(i) the employer was the offender,(ii) he violated his duty to (actively) protect the employee, or(iii) the offender acted as the employer's vicarious agent.'The victim is entitled to material damages and, if he or she

suffered sexual harassment or if the victim's health was harmed, todamages for pain and suffering.83 If the employer is tortuously liablethe victim is entitled to damages for pain and suffering as in the casewhere the victim's right of personality was harmed.'4A tortious liability of a supervisoror coworker is possible only ifthe victim's life, health, property, or right of personality was harmed.The same types of damages (material and damages for pain andsuffering) are available;85 however, the victim has claims against aharassing supervisor or coworker if he lost his job as a result of theworkplace bullying.86

79. Cf. 11.13.1.a.80. Cf II.B.1.b.81. Cf. 1I.13.1.c.82. Cf. III.B.2.a.83. Damages for pain and suffering are not available if the victim was harassed for racistmotifs because section 253m paragraph 2 of the German Civil Code restricts this remedy toharassment for sexual reasons.

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WORKPLACE BULLYING IN GERMANYC. MiscellaneousOtherRights

1. Right of Retention, Section 273, Paragraph (1) of the GermanCivil Code

The employee may refuse to work without losing his wage claimunder section 273, paragraph (1) of the German Civil Code87 if (i) themobbing behavior is serious, (ii) the employer does not take actiondespite knowing about the workplace bullying, and (iii) exercising thisright is necessary and appropriate to eliminate the harassment. 88Because of this last precondition a victim has no right to retention ifhe or she is jointly responsible for the conflict.89 Exercising the rightof retention can be very risky for the employee as he will have toprove that these preconditions are fulfilled; otherwise he will haveviolated his contractual duties and may be liable for damage claims ofthe employer.'2. Complaint According to the Works Constitution Act of 1972

Sections 84 and 85 of the Works Constitution Act of 1972(Betriebsverfassungsgesetz) stipulate two different alternatives for anemployee to file a complaint. It is up to the employee to decide whichway to pursue; both at the same time or one after another.91

87. "If the obligor has a claim that is due against the obligee under the same legalrelationship as that on which the obligation is based, he may, unless the obligation leads to adifferent conclusion, refuse the performance owed by him, until the performance owed to him isrendered (right of retention)."

88. Lange, supra note 31, at 290; Kollmer, supra note 1, at mn. 47; Hans-Karl Gamerschlag& Inga Perband, Mobbing--verstdirkter Rechtsschutz gegen ein Massenphidnomen in derArbeitswelt, ZEITSCHRIFT FUR VERS[ICHERUNGSRECHT 289 (2002); Benecke, supra 21, at 231.

89. LAG May 3, 2000, NZA-RR 517 (2000); Rieble & Klumpp, supra note 21, at 380. Forprocedural problems, see BAG Jan. 23, 2007, NZA 1166, 2007.90. Richard Richardi & Philipp S. Fischinger, Annotation, Employment Law I, in

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174 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:153a. Complaintto the Employer,Section 84 of the Works Constitution

Act of 197292Section 84 Works Constitution Act of 1972 gives every employeethe right to file a complaint to the employer if he feels discriminated93against or unfairly treated or otherwise disadvantaged. As this rightderives from the employment relationship, it exists not only inestablishments with a works council, but also in those without.94 If thecomplaint is justified, the employer has to redress the grievance bytaking the necessary and appropriate measures; if he fails to do so , theemployee may sue him to ensure compliance.b. Complaintto the Works Council,Section 85 of the WorksConstitutionAct of 197295Instead of complaining directly to the employer, the employeemay file the complaint to the works council (presuming one waselected in the establishment). If the works council deems thecomplaint to be justified, it has to address the employer and ask forremedial action. If the employer shares the works council's opinion ithas to redress the grievance. However, if the employer disagrees, theworks council may, at its discretion,96 apply to the conciliation board(Einigungsstelle) under section 76 of the Works Constitution Act of1972; the decision of this committee is binding for both parties insofaras the facts at issue are concerned, but not in regard to questions of

92 . Paragraph (1): "Each employee has the right to make a complaint to the competentauthority of the establishment if he feels he has been discriminated against or unfairly treated orotherwise disadvantaged by the employer or employees of the establishment. He may invite amember of the works council to assist or mediate." Paragraph (2): "The employer shall informthe employee of how the complaint will be handled and, if he considers the complaint justified,rectify the situation." Paragraph (3): "The employee may not be subjected to any disadvantagefor filing a complaint."93. "Discrimination" in this context is not limited to the grounds for discrimination that areprohibited by the German General Treatment Act but means discrimination for any reason.RICHARD RICHARDI & GREGOR THOSING, BETRIEBSVERFASSUNGSGESETZ 84, n.6 (12th ed.2009).94. Kollmer, supranote 1,at mn. 53; Lange, supranote 11, at 290.95. Paragraph (1): "The works council shall be authorized to accept complaints from theemployee and, if it considers them to be justified, to influence the employer to rectify thesituation." Paragraph (2): "Where differences of opinion exist between the works council andthe employer regarding the justification of a complaint, the works council may appeal to theconciliation board. The decision of the conciliation board shall replace an agreement betweenthe employer and the works council. This does not apply if the subject of the complaint is a legalclaim." Paragraph (3): "The employer shall inform the works council regarding the handling ofthe complaint. section 84 II remains unaffected."


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WORKPLACE BULLYING IN GERMANYlaw.97 In all cases reprisals against the employee who files a complaintare prohibited under section 85, paragraph (3) of the WorksConstitution Act of 1972.

3. Right to Demand the Transfer or Dismissal of the OffenderSection 241, paragraph (2) of the German Civil Code obliges the

employer to protect the employee against acts of other employees;this may include transferring or even dismissing the offender.However, as the employer has wide discretion as to actions he wantsto take, the employee can demand a transfer or dismissal of theoffender only in exceptional circumstances.98

4. Right to Demand a TransferAs a last step before terminating his own employment contract

and in particular in cases where the victim cannot demand the transferor dismissal of the offender, it is possible for the victim to demand hisown transferwithin the company. Basis for this claim is again section241, paragraph (2) of the German Civil Code. In its decision ofOctober 25, 2007 the Federal Labor Court had to decide about such aclaim: The victim, a physician, was employed at a hospital andclaimed that he was mobbed by his supervisor. He claimed that,among other acts, he was insulted, his supervisor ignored his well-prepared presentations, and failed to inform him about therescheduling of important conferences. Furthermore, he was alsoaccused of being malicious and insufficiently qualified professionally.Although the Federal Labor Court denied the right of the victim todemand a transfer, in this specific case, it seems that, in principle, sucha claim could have been established successfully. In such cases,however, transfers are possible only pending the availability of a workplacement that concords with the victim's skills and qualification. Theemployer has, in general, no obligation to create a new job.99 In factthis disadvantages highly specialized employees as it is often muchmore difficult for them to name an appropriate alternativeworkplace."

97. Wiese, supranote 91, at 1019.

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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:1535. Termination Without Notice, Section 626 of the German CivilCode;1"1 Damages, Section 628, Paragraph (2) of the German Civil

CodeA person feeling harassed may, of course, terminate hisemployment contract at any time by giving notice. As, under Germanlaw, the employee does not have to provide a reason to terminate thecontract with notice, in general no legal problems are triggered if theemployee decides to do so .Difficulties may arise however, if the victim wants to terminatehis employment contract without notice, as this can have a seriousimpact on the employer's business (e.g., the employee has special

knowledge that is necessary to run the company). Therefore,according to section 626 of the German Civil Code, a termination atthe initiative of the employee, without notice, is possible only inexceptional circumstances: First of all, the workplace bullying has tobe grave enough that from the perspective of a reasonable person itwould be unbearable for the employee to stay on the job until the endof the period of notice (e.g., the victim's health would be endangeredor the victim suffered severe112 sexual harassment).10 3 Second, thetermination without notice must be a proportionate action. Ingeneral, this is the case only if the employer did not take effectiveactions to protect the employee although he knew about the problem.Moreover, when balanced against each other, the victim's interestsmust outweigh the employer's interests. Last but not least, theemployee has to observe section 626, paragraph (2) of the German

101. Section (1): "The service relationship may be terminated by either party to the contractfor a compelling reason without complying with a notice period if facts are present on the basisof which the party giving notice cannot reasonably be expected to continue the servicerelationship to the end of the notice period or to the agreed end of the service relationship,taking all circumstances of the individual case into account and weighing the interests of bothparties to the contract." Paragraph (2): "Notice of termination may only be given within twoweeks. The notice period commences with the date on which the person entitled to give noticeobtains knowledge of facts conclusive for the notice of termination. The party giving notice mustnotify the other party, on demand, of the reason for notice of termination without undue delayin writing."102. German statutory law does not distinguish between severe and mild sexual harassment.Section 3, paragraph 4 of German General Treatment Act defines sexual harassment as anunwanted conduct of a sexual nature, including unwanted sexual acts and requeststo carry out sexual acts, physical contact of a sexual nature, comments of a sexualnature, as well as the unwanted showing or public exhibition of pornographicimages, that takes places with the purpose or effect of violating the dignity of theperson concerned, in particular where it creates an intimidating, hostile, degrading,humiliating or offensive environment.By requiring "severe sexual harassment" for the right to terminate the contract without givingnotice the Federal Labor Court restricts the victim's

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WORKPLACE BULLYING IN GERMANYCivil Code stipulating that the contract must be terminated within twoweeks of the employee obtaining knowledge of the facts entitling himto the termination. However, as mobbing is an ongoing process, thisperiod re-starts again with each event constituting another link in thechain of events.0 4

In times of large-scale unemployment, the employee's right toterminate his contract without giving notice is more of a bluntinstrument than a tool of precision and, in addition, often plays intothe hands of the offender who wants the victim to leave the company.However, at least the first of these problems can be alleviated bysection 628, paragraph (2) of the German Civil Code that states:10 5 Ifthe termination 106 is caused by the conduct of the other party in breachof contract, this party is obliged to compensate the damage arisingfrom the dissolution of the employment relationship. This requiresthat either the employer, a member of his managing or supervisoryboard, or a person whose behavior is attributed to him pursuant tosection 278 of the German Civil Code be the offender or that theemployer be in default with regard to his duty to take action againstthe harassment incidents. In addition, the employer is liable only if heknew about the harassment.10 7 If these preconditions are met, section628, paragraph (2) of the German Civil Code entitles the employee tofull compensation for the non-performance of the contract, inparticular for the loss of earnings and a reimbursement of the cost ofjob applications. However, the Federal Labor Court limits the lost-earnings-claim to the period up until the employer would have beenable to terminate the employment contract with notice (even if theemployer does not have reasons that would legally justify atermination)." '

D. Cut-OffPeriodsEmployment contracts often stipulate that "claims based on the

employment relationship" (Anspruch aus Arbeitsverhiiltnis) are

104. Martin Henssler, Comment, in MONCHENER KOMMENTAR ZUM BGB 626, inn. 307(5th ed. 2009).105. "If notice of termination is prompted by the conduct of the other party in breach of

contract, then the other party is obliged to compensate the damage arising from the dissolutionof the service relationship."106. Although section 628, paragraph (2) of the German Civil Code refers only to a

termination without notice it is generally accepted that it is applicable even if the employeeterminated the contract ordinarily, as long as he would have been able to terminate it withoutnotice. Cf BAG Aug. 8, 2002, NZA 1323, 2002; Sagmeister, supranote 71, at 209.

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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:153extinguished if the claimant does not claim them within a certainperiod of time, e.g., six months ("cut-off periods"). 19 Contrary to theperiod of limitation, cut-off periods lead to the extinction of the claimeven if the employer does not argue that. Although such clauses are,in principle, valid as they meet the legitimate interests of both partiesin resolving potential legal disputes as quickly as possible,11" in thecontext of this paper they raise three issues.

1. Invalidity Because of Section 202, Paragraph (1) German CivilCode

Section 202, paragraph (1) German Civil Code . makes itimpossible for the employer to limit his responsibility for his ownintentional acts in advance. However, as sections 278, sent. (2),112 276,paragraph (3)113 of the German Civil Code demonstrate, it is possiblefor the employer to restrict his liability for intentional acts bysupervisors or coworker in advance."4

2. ScopeAs the wording of the clause does not refer to the "employmentcontract" but to the "employment relationship," such clauses covercontractual claims as well as claims based upon a statute (in particulartortious claims).1 5 However, the question as to whether such a clausecovers material damages only or also those for pain and suffering iscontroversial. Whereas most senates' 6 of the Federal Labor Courtargue for the first option, the 8th Senate" 7 recently decided otherwisein a case involving workplace bullying. The 8th Senate argued that inthe context of cut-off periods there could be no difference betweenmaterial damages and damages claimed for pain and suffering. This isa convincing argument because the German constitution not only

109. For the purposes of this article it makes no difference if the employment contract itselfcontains such a clause or if it refers to a collective bargaining agreement with such a clause.110. BAG Mar. 24, 1988, NZA 101, 1989; cf Martin Henssler, Arbeitsrecht undSchuldrechtsreform,RECHT DER ARBEIT 137 (2002).111. "In the case of liability for intentional behavior, the limitation period may not berelaxed in advance by legal transaction."112. "The obligor may not be released in advance from liability for intention."113. "The obligor is responsible for fault on the part of his legal representative, and ofpersons whom he uses to perform his obligation, to the same extent as for fault on his own part.The provisionof section276 (3) does not apply."114. Benecke, supranote 12, at 358.115. BAG Jan. 10, 1974, DB 976, 1974; BAG May 26, 1981, NJW 2487, 1981; cf BAG June28, 1967, DB 1548, 1967 (offering a different

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WORKPLACE BULLYING IN GERMANYprotects the right of personality"8 but also property rights. Section 14,paragraph 1 of the German Constitution stipulates: "Property and theright of inheritance shall be guaranteed. Their content and limits shallbe defined by the laws." From a constitutional point of view thereexists, therefore, no sufficient cause to distinguish between materialdamages and those for pain and suffering. In such a case section 3,paragraph 1 of the German Constitution ("All persons shall be equalbefore the law") dictates that both types of damages are treatedequally and, therefore, subject to the cut-off period."9

3. Determining the Start Date of the Cut-Off PeriodA last question the Federal Labor Court had to address was from

what point in time the cut-off period begins to run. It decided that thecut-off period starts to run at maturity date. Maturity in this contextrequires that the employee must have in fact the opportunity to assertthe claim, that is, in particular, to quantify it.'2 As "mobbing" is anongoing process that consists of several individual events, claims formobbing only mature with the most recent single incident and the cut-off period starts to run again and again.'2' Although this in fact canrender the cut-off period clause useless, it is still an adequate result asthe offender that continues to harass the victim is not worthy of thelegal protection provided by cut-off periods. Therefore, despite theexistence of a theoretically short cut-off period, in practice it ispossible to establish a "mobbing" claim based on events some ofwhich occurred decades ago; however, the employer is protectedinsofar as (i) events that happened long ago are much more difficult toprove (the "obscuring power of time"'22 ) and (ii) the Federal LaborCourt requires a continuity between the single events to establish aworkplace bullying claim'23 (which may not be the case if too muchtime elapsed between the single events).

E. Periodof LimitationContractual as well as tortious mobbing claims are subject to the

standard limitation period of three years, as established in section 195

118. See supra Section HI.C.2.119. Benecke, supranote 12, at 358; Sasse, supranote 14, at 1453.120. BAG Mar. 27, 1996, NZA 45, 1997; Sasse, supranote 14, at 1453.

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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:153of the German Civil Code. 124 This period runs as soon as the claim ismature and the employee knows about the circumstances that giverise to the claim or would have obtained such knowledge if he had notacted with gross negligence, section 199, paragraph (1) of the GermanCivil Code.125 Concerning the maturity (and, therefore, thedetermination of the start date of the period of limitation), the sameprinciples are applicable to cut-off periods as apply to periods oflimitations. 126

IV. PROCEDURAL QUESTIONSA. Burdenof Production/Proof

The most important problem that arises in practice in connectionwith workplace bullying is to prove (i) the harassing acts and (ii) thatthese acts played a causal role in regard to the harm that occurred.Proving the harassing incidents is in most cases difficult because theoffender deliberately tries to avoid acting in the presence of witnesses.The causality, too, is hard to prove, in particular as far as mentalillnesses are concerned.To help the employee, the Thuringian Higher Labor Court(Landesarbeitsgericht Thiiringen),'7 in one case, established twoalleviations of the standard of proof: First, it stipulated that a medicalstatement reporting harms that are typical for situations of workplacebullying establishes circumstantial evidence that the harassing actstook place. Second, a close timely connection between the provenharassing mobbing acts and the occurrence of physical andpsychological harm establishes a rebuttable presumption as tocausality.Although one has to acknowledge that the Thuringian HigherLabor Court tried to help victims that otherwise have often only slimchances to succeed in court, these alleviations are neither convincingnor do they fit into the German procedural law. First of all, it is acircular reasoning to hold that the illness indicates the existence of theharassing acts and these, in turn, indicate the causality between the

124. "The standard limitation period is three years."125. "The standard limitation period commences at the end of the year in which: 1. the claimarose and 2. the obligee obtains knowledge of the circumstances giving rise to the claim and ofthe identity of the obligor, or would have obtained such knowledge if he had not shown grossnegligence."126. Benecke, supra note 12, at 358; Sasse,

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WORKPLACE BULLYING IN GERMANYacts and the illness.," Second, the term "harms that are typical forsituations of workplace bullying" is much too indefinite to be suitableto constitute circumstantial evidence.129 Last but not least, Germanlaw typically establishes alleviations of the burden of proof only if theparty against whom the claim is asserted has much better knowledgeabout what happened than the claimant; e.g., this is the case withmanufacturer's liability or liability for medical malpractice. However,in situations of workplace bullying the employer typically has no headstart in terms of knowledge as most incidents occur in private betweenoffender and victim. 1 30

Because of these reasons it is important to note that the FederalLabor Court refused to establish special rules/alleviations for theburden of proof of a mobbing victim."' Therefore, the employee hasnot only the onus of proof for the harassing acts but also for thecausality between them and the harm occurred. However, if there is aclose timely connection between the established fact of harassmentand the illness that occurred, the causality between the two is stronglyindicated (which is less than a rebuttable presumption but may,nonetheless, help the victim to establish his claim in court).Moreover, if the victim is able to prove some of the alleged harassingacts, this may provide an indication that the rest of his allegations aretrue, too.' 32

As a consequence of this adjudication it is recommended that theemployee keep a "mobbing diary"'' 33 in which he tracks all incidentsnecessary to prove his claim. As he often will not be able to name awitness, at least not for all incidents, he may request to beinterrogated himself (section 447 Code of Civil Procedure,Zivilprozessordnung,)'" or for the employer to be interrogated(section 445 Code of Civil Procedure).'35 To prove the causalitybetween the harassing acts and the harm incurred, the victim mayrequest a medical expert opinion (the party that loses the trial bearsthe costs).

128. Sasse, supranote 14, at 1452; Benecke, supra note 12, at 229.129. Lange, supranote 11, at 291.130. Benecke, supranote 12, at 229131. BAG May 16, 2007; ArbG, NZA-RR 2002, 123; LAG, Arbeit und Recht [Ar] 37, 2003.132. Benecke, supra note 12, at 229.133. Rieble & Klumpp, supranote 9, at 311.134. "The court may interrogate the party that has the burden of proof about a fact at issue,if this party makes a motion for it and the other party agrees with that." (author's translation).135. Paragraph (1): "A party that is unable to completely furnish evidence or that has no

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COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:153B. Action for aDeclaratoryJudgmentBecause ofPotentialFuture

DamagesIn cases of psychiatric and psychosomatic illnesses it is often verydifficult to predict how they will develop in the future. The victimruns the risk that they get worse after a couple of years that will notonly lead to problems with the period of limitation136 but will alsomake it much more difficult to prove the facts at issue. In order toalleviate these problems, the Federal Labor Court allows theemployee to file a petition for an action for a declaratory judgmentstating that the employer is liable for all future damages that arecaused by the harassment.'37 If the employee succeeds, the period of

limitations is extended to thirty years (section 197, paragraph 1, No. 3of the German Civil Code138) and a court deciding about claims in afuture court proceeding is bound by the substantial res judicata. Thelatter means that the court cannot deny that the harassing acts tookplace and that the employer is liable for their ramifications; however,the victim still has to prove that he suffered from an (additional)illness caused by these acts.V. CONCLUSION: NECESSITY OF A SPECIAL STATUTORY LAW FOR

MOBBING?As demonstrated in this paper, the general civil and employmentlaw provides a bundle of different rights and possibilities for mobbingvictims. Although the most important remedies are damages(material as well as for pain and suffering), the other options (e.g.,injunctive relief, the right of retention, and the possibility of filing acomplaint to the employer or to the works council) may also help thevictim. Against this background it seems unnecessary to pass a lawchanging the substantive law in force and creating a special statutorylaw dealing with workplace bullying, as it is hard to imagine whatother remedies such a law could provide.'39However, as favorable as the substantive law may be, the victimalways faces the problem of evidence. The Federal Labor Court'srefusal to establish a rebuttable presumption for the causality betweenthe harassing acts and the harm occurred makes it, in many cases, verydifficult for the victim to succeed in court. Under the existing law in

136. Cf Section F.137. BAG May 16, 2007, NZA 1154, 2007.138. Reads as follows: "Unless otherwise provided,

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WORKPLACE BULLYING IN GERMANYforce this adjudication is certainly convincing. The question howeveris, whether an amendment to the existing law would be desirable inorder to make it easier for the victim to prove the harassment. Thereis no doubt that mobbing is a condemnable behavior that must betaken seriously and against which all forces within society shouldstrive to fight. On the other hand the principles governing the divisionof the burden of proof in German law are sound: basically it is up tothe claimant to prove the facts at issue to establish its claim. Anexception from this rule is appropriate only if it is necessary tobalance an "institutional" knowledge deficit of the claimant;"institutional" in this sense means that it must be a typical knowledgedeficit arising in situations where the claimant cannot have the sameinsight into the events that caused the harm. This is, for instance, truefor manufacturer's liability as the victim in such cases does nottypically have the necessary knowledge about the production processin order to prove that the manufacturer violated his duties. However,in the typical mobbing situation this is not the case: if the harasser is asupervisor or a coworker the employer may not have an idea of whatis going on at all; and even if the employer itself is the offender thevictim has no knowledge deficit as he is as well acquainted with thesituation as the employer.Summing up, the lack of an "institutional" knowledge deficitstrongly speaks against a statutory amendment of the German Codeof Civil Procedure to alleviate the burden of proof of the victim.Although it may be desirable for the victim in some cases it wouldseverely change a generally well functioning and fair balanced systemof burden of proof. In addition, although mobbing may have severeconsequences for the victim, compared, for example, to battery (forwhich no special alleviations of the burden of proof exist) it is not suchan extraordinary phenomenon that would require a special statutoryregulation of the burden of proof. Also, one cannot generally arguethat it is more difficult to prove mobbing compared with provingbattery; although the latter may leave one's mark on the victim'sbody, this is not necessarily the case and, even if there are somemarks, it is often difficult to prove that they resulted from some formof physical violence. Therefore, the better arguments speak againstsuch an amendment.

It is hoped that, due to the interest society, lawyers, physicians,and psychologists take in workplace bullying, employers, supervisors,and coworkers not only pay more attention to such events and care

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184 COMP. LABOR LAW & POL'Y JOURNAL [Vol. 32:153aware. In the end the "battle against workplace bullying" will have tobe fought (and won) mainly at the workplace itself and not in courtrooms.


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TITLE: Mobbing: the German law of bullying

SOURCE: Comp Labor Law Policy J 32 no1 Fall 2010

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