Conflicts between colleagues are part and parcel of everyday working life. But at what point does a dispute become actual bullying, and what obligations does an employer have when they become aware of it? An overview of the legal situation.
What exactly is bullying?
Bullying is not a term defined by law, nor does it constitute an independent basis for a claim in court. The Federal Labour Court (BAG) describes bullying as the systematic hostility, harassment or discrimination against employees by colleagues or superiors. In 2018, the Court of Justice of the European Union clarified that the conduct in question must be improper and must occur repeatedly or systematically over a prolonged period.
The key word here is ‘systematic’. One-off conflicts, an occasionally harsh tone or an uncomfortable instruction from a line manager are generally not sufficient to constitute bullying. In a recent case, the Mannheim Labour Court clarified that conflicts in the workplace are inevitable and that not every instance of interpersonal tension should automatically be classified as workplace bullying. The court drew the line at acts of intimidation, hostility and humiliation.
Duty of care: Employers must take action
As soon as an employer receives concrete evidence of workplace bullying, they are obliged to take action. This is based on their duty of care under the employment contract and the protection of employees’ personal rights. The Schleswig-Holstein Regional Labour Court has recently reaffirmed this principle.
Depending on the severity of the case, the employer has various options at their disposal. In practice, the step-by-step plan works as follows:
- A reprimand or warning for the employee who is bullying others
- Formal warning
- Transfer of the person responsible
- Dismissal as a last resort
If the employer takes no action despite being aware of the situation, they are breaching their duty of care. This can prove costly.
Compensation for damages and compensation for pain and suffering as a consequence
In such cases, victims of workplace bullying may claim both damages and compensation for pain and suffering. Claims for damages may arise from the employment contract itself, but also from the law of tort. If a line manager engages in bullying behaviour, this conduct is often attributed directly to the employer.
If the General Equal Treatment Act (AGG) comes into play because the bullying is linked to a protected characteristic – such as age, ethnic origin, a disability or sexual identity – additional duties of care and grounds for claims apply. However, the AGG does not cover every form of bullying, but only discrimination on the grounds of the characteristics expressly mentioned.
What is not bullying
In practice, many claims fail because the facts of the case are not set out precisely enough in court or because the definition has been interpreted too broadly. For example, an unlawful dismissal does not in itself constitute an act of workplace bullying. Nor are instructions issued by the employer within the scope of their managerial authority generally regarded as workplace bullying, provided they are not manifestly arbitrary or vexatious.
What does this mean for those affected and for employers?
Employers must take complaints about bullying seriously, document them and respond promptly. Those who turn a blind eye risk liability claims. For those affected: record incidents in writing as accurately and promptly as possible, including the date, those involved and a detailed description of what happened. In the event of a dispute, it is advisable to seek legal advice, as the hurdles in court are high.
Source: Haufe: Human Resources
This post and the accompanying image were created with the help of AI and have been editorially reviewed.
