Frasweet 06fischinger

"MOBBING": THE GERMAN LAW OF BULLYING
Philipp S. Fischingert
I.
INTRODUCTION
Rudeness against, harassment of, and hostilities toward individual employees have undoubtedly existed at all times and are, therefore, not new phenomena in the workplace.' However, over the last ten to fifteen years, sociologists, psychologists, physicians, and legal scholars have increasingly focused on such behaviors. In Germany, workplace bullying 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 Safety and Health (Bundesanstalt ftir Arbeitsschutz und Arbeitsmedizin) conducted a survey in order to gather more information on this phenomenon. 3 Roughly 4,400 workers from all over Germany, working for different employers in the public and the private sector were interviewed and, in addition, the Institute also evaluated the written statements of more than 1,300 of these workers. Results shed light on several aspects of workplace bullying including characteristics of both the victims and the harassers and some of the consequences of these acts. For example, it was noted that 5.5% of the working population was affected by mobbing in the year 2000, while 11.3% had been 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 a result 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 combined attacks by several animals against a rival or superior enemy; later the physician Peter-Paul Heinemann used it to describe the phenomenon of groups attacking people who don't stick to the 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, DER
MOBBING-REPORT: REPRASENTATIONSSTUDIE FOR DIE BUNDESREPUBLIK DEUTSCHLAND
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(2002), available at http://www.baua.de/de/Publikationen/Forschungsberichte/2002/Fb951.html (translated by the author).
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mentioning is the fact that mobbing exists in all types of working environments and on all levels of hierarchy, though women are more often victims than men, and persons younger than twenty-five years of age are more often mobbed than older persons. As for the identity of those engaged in mobbing, in 38.2% of the cases the supervisor alone was the one harassing the victim while in 12.8% of the cases the victim was harassed by a supervisor and a coworker(s). In 20.1% of the cases the harassers were a group of colleagues, while in 22.3% of the cases one single co-worker was the offender. The typical harasser is a male, in a supervisory position, between the ages of thirty-five and fifty-four who has been employed for quite a long time at the company. The consequences for the victims are numerous according to the survey: 25.2% of mobbing victims received one or even several warnings; 8.2% were transferred to another place of employment; 14.8% were terminated and 22.5% of them ended their employment contract "voluntarily." After losing their employment, 11.4% were jobless, a third of them for longer than two years. Furthermore, 98.7% of the victims felt that their experience directly affected their personal, private, or business life (manifesting itself in mistrust, loss of motivation, or nervousness) while 43.9% of victims got sick as a result of the harassment, roughly half of them for a period longer than six weeks (20.1%). In addition, because the victim, as a result of the harassment is often unfit or unwilling to work, mobbing leads to reduced productivity, creates costs for medical treatment, and, thereby, harms 4 economy. national the Despite the increased public interest in workplace harassment, demonstrated by this survey, unlike French law,5 German law has no special rules dealing with mobbing. This article describes how German law deals with the problems arising from mobbing in the workplace. The article seeks to ascertain whether the general provisions of the German Civil Code (BiUrgerliches Gesetzbuch) are sufficient to tackle these problems or if additional statutory protections should be enacted. After defining the term "mobbing" in (Section I), I will demonstrate which preconditions must be fulfilled in order to establish a claim for mobbing (Section II). While in Section III the legal consequences of mobbing (concerning the substantive
4. E.g., Brigitte Kerst-WOrkner, Das schleichende Gift "Mobbing" und die Gegenarznei, 7
ARBEIT UND REcHT 251, 254 (2001) (estimating the harm for the economy sums up to fifty
billion Euros). 5. Loic Lerouge, Moral Harassment in the Workplace: Perspectives,32 COMP. LAB. L. & POL'Y J. 109 (2010).
French Law and European
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law) will be described in detail, in Section IV, I will establish procedural 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 behavior described in Section II. For reasons of clarity, only the masculine grammatical forms will be used. Questions regarding the criminal law aspects of mobbing will not be addressed in this paper.6 II.
DEFINITION AND DISTINCTIONS
A.
Court Definitions
German law lacks a statutory definition of "mobbing." To make sure that legal decisions are predictable it is up to the courts and legal scholars to define the term on their own. In an early decision, the Thuringian Higher Labor Court (Landesarbeitsgericht Thiiringen) defined "mobbing" as "continued and coordinated behavior patterns at the workplace that intend to harass or discriminate against a coworker or subordinate in order to achieve illegal goals and that, at least taken together, violate the right of personality, dignity or health Conversely, the German Federal Labor Court of the victim.' (Bundesarbeitsgericht) first used a much shorter definition and described mobbing as "systematic hostilities, harassment or 8 discrimination, either among co-workers or by a supervisor." However, since the enactment of the German General Treatment Act (Allgemeines Gleichbehandlungsgesetz), the German Federal Labor Court defines "mobbing" in conformity with section 3, paragraph (3) General Treatment Act that stipulates: Harassment shall be deemed to be a form of discrimination, when unwanted conduct related to any of the grounds referred to in section 1 takes place with the purpose or effect of violating the dignity 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 Neue Zeitschrift ffir Arbeitsrecht-Rechtsprechungsreport [NZA-RR] 577 (579), 2001 (Ger.) (in the following all translations are the author's own unless stated otherwise). 8. Bundesarbeitsgericht [BAG] [Supreme Labor Court] Jan. 15, 1997, Neue Zeitschrift for Arbeitsrecht [NZA-RR] 781, 1997; Bundesarbeitsgericht [BAG] [Supreme Labor Court] Apr. 16, 2007, Neue Zeitschrift fUr Arbeitsrecht [NZA] 1154 (2007); Lilly Oberth0r, Mobbing im Arbeitsverhaltnis- Haftung des Arbeitgebers,BETRIEBS-BERATER 675 (2008).
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behavior. This does not mean that the rules regulating "mobbing" are applicable only if the behavior was motivated by a prohibited ground for discrimination (like race, gender, or age), so harassing someone because one does not like the same soccer club would also be considered "mobbing." Conceptually one can distinguish between three forms of bullying:9 (1) mobbing in a narrower sense = mobbing between coworkers that are on the same level of hierarchy (2) bossing = the employer or a supervisor harasses a subordinate employee (3) staffing = a subordinate harasses an employer or a supervisor Naturally, bossing and mobbing in a narrower sense are the most common forms of bullying1" whereas staffing is an exceptional event and--as far as my research shows--court decisions dealing with such a case do not exist in Germany. B. No Legal Term
It 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 their entirety entitle the victim to either claim damages or yet seek injunctive relief for example. Instead of seeking a precise definition it is therefore more useful to describe the general characteristics that constitute what we understand as mobbing. C. Characteristics
Essentially one can name three different characteristic elements of workplace bullying. All of them describe preconditions that must be fulfilled in order to establish a successful claim based on mobbing.
9. Volker
Rieble
& Steffen
Klumpp,
Die Mobbing-Klage, 2002
FACHANWALT
ARBE1TSRECHT 307.
Handhabung des Phdnomens "Mobbing" im Arbeitsrecht, SAMMLUNG ARBEITSRECHTLICHER ENTSCHEIDUNGEN 285-286 (2008); Bernd Hohmann, Rechtliche Voraussetzungen des
10. Cf. the numbers in sub. I. Introduction. 11. BAG Oct. 25, 2007; Rieble & Klumpp, supra note 9, at 308; Hartmut Lange, Die NEUE ZEITSCHRIFr FUR
Mobbingvorwurfs und gerichtlicher Priifungsumfang, 2006

ARBEITSRECHT 530-531.
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1.
Mobbing as a Combination of Single Events
First of all, mobbing must be seen as a combination of single events. In this, the focus is not on one single act that may, taken alone, be banal, but on the overall context shaped by several single events occurring over a longer period of time and are systematically 2 connected by the goal to harass the victim.1 Whereas one single event may be criminally punishable (e.g., an insult or battery) it does not, on its own, create an intimidating, hostile, degrading, humiliating, or offensive environment that is, in reference to section 3, paragraph (3) of the General Treatment Act, necessary to establish a mobbing 4 claim."3 Instead, such events must appear as the links of a chain. To ascertain a claim based on mobbing one has, therefore, to look at the Moreover, the Federal Labor Court requires "bigger picture." continuity between the single events to establish a workplace bullying claim.15 2. Violation of the Victim's Rights
Second, this behavior must have the potential of violating the victim's rights or legal interests. Typically workplace bullying may endanger 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 from insomnia to depression, and extending to cardiovascular diseases and suicide.16 However, psychological harm will entitle the victim to 7 damages only if it attains a certain degree of gravity.' The right of personality is the right of each person to freely develop his personality and to be respected as a unique human being. It is interpreted by the German Federal Labor Court and the Federal Supreme 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 discriminatory behavior one can refer to it in the context of mobbing as the situation is similar as far as the harasser's behavior--not his motivation--is concerned. 14. LAG Mar. 3, 2002, 2002 NAZ-RR 257, 2002; Stefan Sasse, Rechtsprechungsiibersicht
zum Mobbing, BETRIEBS-BERATER 1451 (2008).
15. BAG May 16,2007, NAZZ-RR 1154, 2006. 16. RALF BRINKMANN, MOBBING, BULLYING, BOSSING 167 (2d ed. 2002). 17. Rieble & Klumpp supra note 9, at 309.
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5 This paragraph (1), 1 German Constitution (Grundgesetz)." right can be violated by insults or social exclusion for example. However, it is often very difficult to distinguish between a despicable but not illegal behavior that must be tolerated in a "free society" (in particular discourteousness) on the one hand and behavior that has to be deemed illegal on the other. As one legal scholar expressed it: what is required is evidence of systematic attacks against the victim's personality that are so serious that they are irreconcilable with human dignity.' 9 However, in the end it is up to the judge to evaluate the facts of the case at hand by taking all factors into account. The victim's property or financial interests may be endangered either directly (e.g., damaging or stealing private belongings) or indirectly, in particular if the victim loses his job because of the workplace bullying and is unable to find a new job that is as well paid as the old one.'
3.
Mobbing as a Unidirectional Process
According to German court decisions and legal scholars, mobbing can also be, by definition, a "one-way street" as it is characterized by a clear distinction between the victim and the offender(s).2" Therefore, under German law, situations in which actors exchange mutual and reciprocal insults do not fall into the scope of workplace bullying. And so, in evaluating an alleged harassment situation, one has to take into account the victim's previous behavior. If the victim's previous behavior is said to have provoked the offender, this may present an obstacle for the mobbing claim. Yet on the other hand, can a provocation, even one that took place long ago, really "justify" harassing acts (and, thereby, foreclose the possibility of mobbing against the former agitator) years later?
18. Section 2 para. (1) of the German Constitution states: "Everyone has the right to the free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral code." Section 1 para. (1) of the German Constitution states: "The dignity of man is inviolable. To respect and protect it is the duty of all state authority." Basic Law for the Federal Republic of Germany, WIKISOURCE, http://en.wikisource.org/wiki/Basic_Law_for_the_Federal-Republic_of-Germany (last visited Sept. 10, 2010). 19. Hohmann, supra note 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 FUR ARBEITSRECHT-RECHTSPRECHUNGSREPORT 225, 226 (2003); Volker Rieble & Steffen Klumpp, Mobbing und die Folgen, ZEITSCHRIFT FOR WIRTSCHAFTSRECHT 369, 370 (2002).
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Workplace bullying can take different forms. Basically one can distinguish between harassing acts that use the means of management prerogatives provided for in employment law (e.g., unjustified warnings, unjustified denial of promotion, instructions that are impossible to be carried out) and those that rely on interpersonal behavior, ranging from social exclusion and insults, to assaults, and even battery.22 Whereas the first type can be used only by the employer and a supervisor that has authority over the worker, coworkers are able to harass only by means of interpersonal behavior. E. Synthesis Colloquial language often hastily classifies unfriendly single events as mobbing. In the legal context, however, not every spiteful act establishes a claim based on mobbing. Rather the bullying acts must have occurred over a longer period of time, attained a certain degree of gravity, and appear to be, as links in a chain, parts of a systematic harassment.
III. LEGAL CONSEQUENCES
As mentioned above (Section I), German law has no special statutory provisions dealing with workplace bullying. Therefore, the victim is limited to the general employment and civil law protections. However, these provide various potential recourses (or remedies) as will be detailed. A. 1. Injunctive Relief
Injunctive Relief Against the Employer
The employer has the duty to take care of the rights and legal of his interests (in particular health, right of personality, and property) 2 3 and Code Civil German (2) employees, section 241, paragraph 1972 of Act Constitution Work 75 section 24 If the employer infringes these rights or (Betriebsverfassungsgesetz).
22. Rieble & Klumpp, supra note 21, at 379. 23. "An obligation may also, depending on its contents, oblige each party to take account of the rights, legal interests and other interests of the other party." 24. Paragraph (1): "Employer and the works council have to ensure that all persons employed on the premises are treated justly and equitably, in particular that employees are not discriminated against because of their race, ethnic origin, nationality, religion, philosophy of life, disability, age, political or trade union activity or opinion or because of gender or sexual
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interests, the employee can seek injunctive relief and compel the employer 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 is interpreted even more broadly in that it obliges the employer to: (i) (actively) protect the employee against the behavior of supervisors, co-workers and third persons on which he exercises influence; and, (ii) organize his company in a way that reduces the possibility 26 of such violations. The employer violates the first of these duties if he does not take the appropriate measures against workplace bullying when made 7 aware of it." In this case the victim may demand that the employer take action (Einwirkungspflicht, or duty to intervene). 28 This action can range from mere reprimands, warnings, or transfers (to another place of employment) to terminations with or without notice for the offender. 29 However, the employer in general has wide discretion in 3 the choice of measures he wants to take. Because of this, the victim can demand a specific action only if this sanction is actually the only one that would adequately protect him and is at the same time lawful and reconcilable with the employer's own interests.31 For instance, the termination of the offender's employment contract is, in general, possible only after he has been warned at least once before.32 As far as the second of these duties is concerned, one has to take into account that it is impossible to organize a company in a way that entirely precludes the possibility of workplace bullying.33 Therefore, it is difficult to name specific measures of precaution that must be taken by the employer in order to accomplish this. However, it seems
identity." Paragraph (2): "Employer and the works council have to protect and further the free development of the personality of employees working on the premises. ... " 25. Paragraph (1): "By means of a service contract, a person who promises service is obliged to perform the services promised, and the other party is obliged to grant the agreed remuneration." 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, supra note 4, at 258. 27. BAG May 16, 2007, NZA 1154, 2007. 28. Rieble & Klumpp, supra note 11, at 308. 29. Hohmann, supra note 11, at 532; Rieble & Klumpp, supra note 21, at 379 30. BAG Oct. 25, 2007; Sasse, supra note 14, at 1452; Lange, supra note 11, at 288. 31. Lange, supra note 11, at 288. In the end this is orientated at section 12 III German General Treatment Act that stipulates that an employer shall "take appropriate, necessary and reasonable 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 iM BETRIEB 2004, 105; Arno Schrader, Mobbing am Arbeitsplatz, ARBEITSRECHT IMBETRIEB 439 (2008). 33. Rieble & Klumpp, supra note 9, at 309; Sasse, supra note 14, at 1450.
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reasonable to oblige the employer to design his company in a way that promotes conflict resolution. And so this duty would be violated if, for instance, vague organizational and hierarchical structures 4 promoting disputes between employees were created. 2. Injunctive Relief Against the Offender
If the offender is a supervisor or a coworker, the victim has no contract claims against him, as a contractual relationship exists only between the employee and the employer. However, if the mobbing behavior violates the victim's health, right of personality, or property, the victim can sue for injunctive relief based on an analogous 35 application of section 1004, paragraph (1) of the German Civil Code. In addition, in cases of libel or false statements, section 1000, paragraph (1) German Civil Code gives the victim a right to demand a 36 (public) withdrawal of these comments. B. Damages
Probably the most important remedy available to targets of bullying are claims for damages. In this regard, one has to distinguish between: (1) Contractual damage claims against the employer (sub 1), (2) tort claims against the employer (sub 2), (3) contractual damage claims against coworkers/supervisors (sub 4), and (4) tort claims against coworkers/supervisors (sub 5). The differentiation between tort and contractual damage claims is crucial as the remedies-that is the damages available--differ in one important aspect as will be detailed.
34. Kerst-Wiirkner, supra note 4, at 258; not decided by BAG May 16, 2007, NZA 1154 2007. 35. "If the ownership is interfered with by removal or retention of possession, the owner may 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 the German Civil Code refers only to property, it is generally accepted that it is applicable analogously on absolute rights like health or the right of personality. OTTO PALANDT & PETER BASSENGE, BORGERLICHES GESETZBUCH 1004, n.m. 4 (69th ed. 2010), with further references. Cf. Rieble & Klumpp, supra note 21, at 376; Kollmer, supra note 1, at mn. 76. 36. Cf. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Feb. 27, 2003, 1 BvR 1811/97, Neue Juristische Wochenschrift [NJW] 1855 (2003).
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Contractual Damage Claims Against the Employer
Section 280 of the German Civil Code3 7 stipulates a duty to pay damages if a contracting party intentionally or negligently breaches a contractual duty; in addition, section 241, paragraph (2) German Civil Code obliges each party to protect the rights and legal interest of the other party. There are three potential ways a mobbing victim can successfully establish a contract claim against his employer for workplace bullying. This is easier if the employer himself harassed the employee. More difficulties arise if the offender is not the employer but rather a coworker or a supervisor. In such a case the employer is liable only if either this behavior is attributed to the employer or if the employer violated his duty to protect the employee and to organize the workplace in a way that prevents mobbing. In any case the victim may ask for damages only if the behavior was the cause of the harm suffered and if the offender's actions are culpable, that is, either intentional or negligent. 8 a. Bossing
The situation is rather easy if the employer himself harasses the employee ("bossing"), for example by giving unlawful or inexecutable directives or by insulting or by socially excluding the employee. In this case the employer is, of course, liable for the legal consequences.39 Actions of corporate entities or "legal persons" (limited liability companies, public limited companies) as well as those of managers or members of the managing or supervisory board are, by analogy with sections 31, 89 of the German Civil Code,4 considered as acts of the employer itself and as a result, the employer is therefore liable for them, too.4 "
37. "If the obligor breaches a duty arising from the obligation, the obligee may demand damages for the damage caused thereby. This does not apply if the obligor is not responsible for the breach of duty." 38. However, contrary to section 826 of German Civil Code it is sufficient that the offender acts intentionally or is negligent with regards to his action; it is not necessary that the fault refers to the victim's harm, too. 39. Kerst-Wuirkner, supra note 4, at 258. 40. Section 31 German Civil Code: "The association is liable for the damage to a third party that the board, a member of the board or another constitutionally appointed representative causes through an act committed by it or him in carrying out the business with which it or he is entrusted, where the act gives rise to a liability in damages." Section 89 I German Civil Code: "The provision of section 31 applies with the necessary modifications to the treasury and to corporations, foundations and institutions under public law." 41. BAG May 16, 2007, NZA 1154 (2007).
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Mobbing behavior by supervisors and coworkers can be attributed to the employer only if the preconditions of section 278 of the German Civil Code are fulfilled.4 2 This requires a pertinent relationship between the mobbing behavior on the one hand and the tasks given to the supervisor or coworker by the employer within their existing employment relationship on the other. In other words, mobbing behaviors can be attributed only if the offender is acting in place of the employer, and a link to the employment relationship of the victim can be established.43 This is the case only with instructions, warnings, and other disciplinary actions, but not with harassing acts that do not affect the employment status of the victim. Therefore, only acts of supervisors of the first type but not of the second can be attributed to the employer; and acts of coworkers cannot be attributed at all as they do not act in place of the employer.' For example, if a supervisor (or a coworker) "simply" insults the victim or commits battery, an attribution is not possible because such acts do not affect On the other hand, an the victim's legal employment status. attribution to the employer is possible if, for example, the victim is warned by a supervisor; in this case the victims' employment status is affected as the warning is recorded in his personnel file. c. Duty to Protect the Employee
Although acts by coworkers and supervisors that do not affect the victim's employment status cannot be attributed to the employer according to section 278 of the German Civil Code, the employers are still liable if he violated his duty to (actively) protect the employee against the behavior of supervisors, coworkers, and third persons on which the employer exercises influence (section 241, paragraph [2] German Civil Code).45 In particular, the employer has to organize his company 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 of persons 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, NZA 223, 2008; Sasse, supra note 14, at 1452; Rieble & Klumpp, supra note 9, at 309; Kollmer, supra note 1, at Rndr. 71. 44. Cf. BAG May 16, 2007, 8 AZR 709/06, NZA 1154, 2007. 45. BAG Oct. 25, 2007, NZA 1154, 2007; Rieble & Klumpp, supra note 21, at 379.
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importantly, in day-to-day practice, he must take the appropriate steps against any workplace bullying of which he is aware.46 d. Various Forms of ContractualDamage Claims
First of all, the employer has to pay material damages. This may include various types of damages: If the victim suffered harm to his or 7 her health the employer has to pay all costs for medical treatment 4 including, if necessary, the costs for psychiatric therapy. During these treatments, cures, and therapies, the victim is often unable to work. Under German law the victim is entitled to sick pay, equivalent to 100% of his remuneration, paid by his employer "only" for up to six weeks, section 3, paragraph (1) Continuation of Remuneration Act 48 (Entgeltfortzahlungsgesetz). Afterwards he is only entitled to a sickness allowance (Krankengeld, sections 44 et seq. German Social Security Code V [SGB V]) amounting to a maximum of 70% of his remuneration. The debtor of this claim is not the employer, but the social insurance.49 To compensate this material disadvantage the victim may claim the difference between his salary and this sickness allowance. 5" If the victim's right of personality was violated the employer is not only obliged to withdraw or correct any insulting or humiliating statements, but he may also have to pay for any material damages arising out of these statements (e.g., the employee was unable to find a new job because his reputation suffered). If the victim was forced to leave the company and terminate his employment contract with 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 see III.A.1. 47. Rieble & Klumpp, supra note 9, at 310. 48. "Should an employee be prevented from working due to an incapacitation for which he is not at fault, he shall not lose his claim to remuneration for the time of his incapacitation for a period of up to six weeks." 49. In general an employee is automatically insured in case of sickness. The social insurance has, for example, to pay the costs of medical treatments. Moreover, an employee that is unfit to work due to illness is entitled to sickness allowance, sections 44 et seq. German Social Security Code V. As mentioned, the allowance amounts to a maximum of 70% of his regular remuneration, section 47, paragraph (1) of the German Social Security Code V. In general, the sickness 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 the German Social Security Code V. An employee is entitled to sickness allowance also, if he has to take care of his own sick child as long as the child is younger than twelve years old; however, in this case he can claim sickness allowance only for ten (twenty if he raises his child alone) days each year (section 45 of the German Social Security Code V). 50. For a definition see II.C.2.
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damages 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 was harmed, he or she is entitled to contractual damages for pain and suffering, section 253, paragraph (2) German Civil Code.52 In practice difficulties arise when it is necessary to quantify the damages for pain and suffering. Some courts took the victim's monthly wage as a criterion and multiplied it by the number of months the workplace bullying took place.53 However, this is not convincing as it necessarily values the health or sexual self-determination of, for instance, a wellpaid personnel manager higher than that of a low-income janitor; apart from that, the idea of damages for pain and suffering is to compensate and satisfy the victim for harm suffered"4 -- and the amount of money required to achieve that is independent of the victim's monthly wage. Because of that, the amount of damages for pain and suffering has to be determined for every particular case Criteria used for this determination are first and individually.5 foremost the character and intensity of the impairment and the degree of fault. As a result, a coworker that harassed a subordinate intentionally has to pay more damages for pain and suffering than an employer who neglected to fulfill his duty to organize his company in a way that reduces the possibility of such workplace bullying.56 e. Causation
The 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 this particular case, the onus of proof lies with the employee, which, in practice, 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 selfdetermination, reasonable compensation in money may also be demanded for any damage that is 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. 57. Cf, e.g., BAG Oct. 25, 2007, NZA 223, 2008; LAG Feb. 15, 2001, NZA-RR 577, 2001: The employer is liable for a suicide of the victim only if, at the time at which the harassment took place, a reasonable person would have been able to foresee this outcome.
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2.
Tort Damage Claims Against the Employer a. Claims
If the employer, intentionally or negligently, unlawfully injures the life, health, or right of privacy of an employee, the employee has a tortious damage claim, according to section 823, paragraph (1) of the 5 German Civil Code. An employer is tortiously liable for acts committed by one or more of his employees only according to section 831, paragraph (1) of the German Civil Code.59 Section 831 of the German Civil Code requires that the harassing employee (i) be a person that is used by the 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 only with actions that affect the employment status of the victim but not with "mere" insults, hostilities, and harassing acts. Therefore, only a supervisor can be a vicarious agent and only insofar as he issues directives or status-related orders. Apart from that, neither supervisors nor coworkers are vicarious agents. Even if a supervisor acts in a specific situation as the vicarious agent the employer can still escape a tortious liability by exculpating himself according to section 831, paragraph (1), sentence (2) of the German Civil Code.6 To do so, the employer must have exercised care in the selection and monitoring of the supervisor and the burden of 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 the other party for the damage arising from this." Kollmer, supra note 1, at rin. 73. In such cases the employee may also have claims based on section 823, paragraph (2) of the German Civil Code and section 826 of the German Civil Code; however, as these sections typically do not provide any other claims than section 823, paragraph (1) of the German Civil Code does, I will not 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 of a statute that is intended to protect another person. If, according to the contents of the statute, it may also be breached without fault, then liability to compensation only exists in the case of fault." Section 826 German Civil Code stipulates: "A person who, in a manner contrary to public policy, intentionally inflicts damage on another person is liable to the other person to make compensation for the damage." 59. "A person who uses another person to perform a task is liable to make compensation for 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 the person deployed and, to the extent that he is to procure devices or equipment or to manage the business activity, in the procurement or management, or if the damage would have occurred even if this care had been exercised." 60. See supra note 61. 61. However, in the public service the employer is tortiously liable following sections 839 of the German Civil Code, section 34 of the German Constitution without the possibility of an exculpation.
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b.
Types of Damages
In principle tort law offers the victim the same types of damage claims as contract law.62 However, there is one important difference: tort law is favorable for the victim insofar as it offers damages for pain and suffering not only if the victim's health or his right to sexual determination was harmed, but also if the offender harmed the victim's right of personality. The Federal Labor Court and the Federal 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, that is: it is a right enforceable against everyone.'4 However, contrary to other absolute rights protected by section 823, paragraph (1) of the German Civil Code, it is a so-called "open right," which means that no presumption for the unlawfulness of an impairment exists; rather the unlawfulness has to be determined in each individual case by balancing the contradicting interests.65 For example, the assignment of inferior work (a supervisor orders a lawyer to do janitor work) may impair the right of personality; but this is unlawful only if it is motivated by the wish to wear down the employee (and not, for example, if the employer is in a predicament that requires the order).6' A major criterion in this balancing test is the gravity of impairment to the right of personality. A violation of the right of personality gives rise to a claim for damages for pain and suffering only if it is such a severe impairment that the damages are necessary to compensate and satisfy the victim.67
62. See supra III.B.l.d. 63. Section 2, paragraph (1) of the German Constitution: "Everyone has the right to the free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral code." Section 1, paragraph (1) of the German Constitution: "The dignity of man is inviolable. To respect and protect it is the duty of all state Basic Law for the Federal Republic of Germany, WIKISOURCE, authority." http://en.wikisource.org/wiki/Basic-Law for_the_Federal-Republic.of-Germany (last visited Sept. 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, supra note 21, at 371; Benecke, supra note 12, at 363. 66. LAG Feb. 15, 2001, NZA-RR 347, 2001; Benecke, supra note 21, at 230. 67. Georg Lorenz, Mobbing am Arbeitsplatz-Handlungsmr6glichkeiten von Betroffenen, Arbeitgeber und Personalrat,DER PERSONALRAT 65, 70 (2002); Lange, supra note 11, at 290; Rieble & Klumpp, supra note 9, at 310.
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3.
Synthesis (Damages Against the Employer)
The employer has to pay material damages under both contractual violations and under tort law. Damages for pain and suffering are available under contract law only if the victim's health or sexual self-determination was harmed whereas, under tort law, the victim may also claim damages for pain and suffering if his right of personality was harmed. 4. No Contractual Damage Claims Against the Harassing Coworker/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 also the offender himself (for instance if the employer is insolvent or in situations in which it is unclear if the behavior of the coworker is attributed to the employer). However, section 280 of the German Civil Code68 provides for contractualdamages for breach of duty only if a contract exists between the claimant and the party against whom he asserts the claim. As no contractual relations exist between coworkers or workers and their supervisors, section 280 of the 9 Therefore German Civil Code does not establish a basis for a claim. 6 the victim does not have any contractual damage claims against coworkers/supervisors. 5. a. Tort Damage Claims Against the Harassing Coworker/Supervisor Life, Health, Property,Right of Personality
A supervisor or coworker who intentionally or negligently and unlawfully injures the life, health, property, the right of personality of an employee is subject to a tortious liability pursuant to section 823, paragraph (1) of the German Civil Code. When this recourse is available, it applies in the same way as the tortious liability of the employer."
68. "If the obligor breaches a duty arising from the obligation, the obligee may demand damages for the damage caused thereby. This does not apply if the obligor is not responsible for the breach of duty." 69. Holger Sagmeister, (iber die rechtlichen Konsequenzen von Mobbing und das Recht am Arbeitsverhiiltnis, JURISTISCHE ARBEITSBLATMER 207, 209 (2008); Benecke, supra note 21, at 227. 70. See Section TII.B.2.a
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b.
Job Loss
In situations in which the victim loses his job because of harassment by a supervisor or coworker, the question arises as to whether the victim has grounds for a tort claim against the offender based on the loss of employment. What happens, for instance, when a supervisor, who has the authority to do so, dismisses the victim or when a demoralized and desperate victim, who sees no other alternative, terminates the employment contract in order to evade further harassment? In this context two different ways to establish such a claim have to be considered. ii. Section 823, Paragraph (1) of the German Civil Code
This section explicitly enumerates a number of protected rights (e.g., life, health) but also refers to "another right." As the right to keep a job is not mentioned in the enumeration it can be protected by section 823, paragraph (1) of the German Civil Code only if it is considered to be "another right." However, it is undisputed that not all rights and legal interests fall within the scope of this term because a comparison of the enumerated rights shows that these are rights that are "absolute," that is they are protected universally against everyone (for instance life, property, etc. . . .). Therefore, courts and legal scholars agree that a claim can be established pursuant to section 823, paragraph (1) only if the violated right was an absolute right.71 An absolute right is characterized by the fact that it is protected not only against individual persons (for example, the other contracting party) but against all other persons. The issue as to whether the employee has an absolute right to keep his job is controversial. Scholars supporting this interpretation point to the fact that the employment relationship is strongly protected by various legal statutes and is, therefore, similar to the enumerated rights.7" It is true that, as soon as the employment relationship is established and certain preconditions are fulfilled, under German law the employee is protected against unfair dismissals by the employer. The employee therefore has a right to keep his job and this must be upheld by the However, this right exists only in the employment employer. relationship, 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). 72. Axel Aino Schleusener, Rechtsschutzmdglichkeiten bei einer Druckkiindigung gegeniiberdem druckausabenden-Zugleichzum Recht am Arbeitsplatz als sonstigem Rechl i.S.d. 823 1 BGB, NEUE ZE1TSCHRIFT FOR ARBEITSRECHT 1078, 1080 (1999).
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same is true for all other rights arising from the employment relationship (e.g., the wage claim naturally is directed against the employer only). As the rights enjoyed by the employee in the employment relationship are "only" a bundle of contractual rights against the employer, but not against other persons, there is a convincing argument not to qualify the right to keep one's job as an absolute right. 3 A consequence of that interpretation is that the harassment victim cannot establish a tortious damage claim based on section 823, paragraph (1) of the German Civil Code based on his loss of employment. ii. Section 826 of the German Civil Code 4
The other recourse of the harassment victim is, therefore, section 826 of the German Civil Code. Contrary to section 823, paragraph (1), section 826 of the German Civil Code protects not only absolute rights but also, for example, the victim's earning potential. 5 However, a claim 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 offender not only intended to act but also to cause the specific type of damage that 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, 77 incompatible with the sense of decency of all fair-minded persons. However, problems regularly arise in regard to the second precondition: In many cases in which the victim "voluntarily" resigned from his job, the offender "only" wanted to insult the victim and let him suffer but did not intend this outcome with its potentially disastrous economic consequences. Even if, in fact, the offender intended to cause the incurred harm, the victim must still prove the malicious intention. Therefore, even in cases in which a supervisor discharges the victim as perhaps the last act of harassment, the victim may have difficulties succeeding with his claim pursuant to section 826 of the German Civil Code.
73. Oberlandesgericht [OLG] [higher regional court] Jan. 23, 2003, Neue Juristische Wochenschrift [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, supra note 12, at 1116. 74. "A person who, in a manner contrary to public policy, intentionally inflicts damage on another person is liable to the other person to make compensation for the damage." 75. OTTO PALANDT & HARTWIG SPRAU, BORGERLICHES GESETZBUCH 826, mn. 1 (69th ed. 2010). 76. Gerhard Wagner, Comment, in MONCHENER KOMMENTAR ZUM BGB 826, ran. 24 (5th ed. 2009). 77. For the definition of a violation of public policy, see BAG Apr. 26, 2006, NZA 1354, 2006.
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iii.
Summing Up (Tort Damage Claims Against the Harassing Coworker or Supervisor)
If the offender is a coworker or a supervisor the victim is limited to tort claims. In cases of violations of health, life, property, or his right of personality, the victim can claim damages. However victims facing ongoing harassment who see no alternative other than "voluntarily" resigning from the job can be entitled to damages only pursuant to section 826 of the German Civil Code whose preconditions are often not fulfilled or are, at least, very difficult to prove. c. Types of Tortious Damages i. Material Damages
As the liable employer, the offender has to pay material damages, in particular for medical treatment including rest or treatment costs and, if necessary, psychiatric therapy. Moreover, the victim may claim the difference between his or her salary and the sickness allowance pursuant to sections 44 et seqq. of the German Social Security Code
78
v.
ii.
Withdraw or Correct Statements
If the offender violated the victim's right of personality he has to withdraw or correct any insulting or humiliating statements. If it is necessary to restore the victim's reputation, this should be done in a way that ensures that all people aware of the violation may have the opportunity to become aware of the withdrawal or correction. iii. Damages for Pain and Suffering If the offender violated the victim's health or sexual selfdetermination he has to pay damages for pain and suffering. The same is true for a violation of the victim's right of personality. The victim's claim against the harassing coworker or supervisor may be higher than the one against the employer that negligently did not fulfill his duty to organize his company in a way that reduces the risk of mobbing, as one of the most important criteria to determine the amount of damages for pain and suffering is the degree of the offender's fault.
78. See Section III.B.l.d.
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6.
Summing Up (Damages Against Employer/Coworker/Supervisor)
Against the employer the victim may have contractual as well as tort claims whereas a supervisor or coworker can be exposed only to tortious claims. The victim has a contractual damage claim against the employer only if either (i) the employer was the harasser (bossing),79 or (ii) the offender's behavior can be attributed to the employer that is the case only with harassing acts of supervisors that affect the victim's employment status,' or (iii) the employer violates his duty to (actively) protect the employee against the behavior of supervisors, coworkers, and third persons on which he exercises influence, section 241 para. (2) of the German Civil Code.81 Tortious claims againstthe 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, to 83 damages for pain and suffering. If the employer is tortuously liable the victim is entitled to damages for pain and suffering as in the case where the victim's right of personality was harmed.'4 A tortious liability of a supervisor or coworker is possible only if the victim's life, health, property, or right of personality was harmed. The same types of damages (material and damages for pain and suffering) are available;85 however, the victim has claims against a harassing supervisor or coworker if he lost his job as a result of the workplace 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 racist motifs because section 253m paragraph 2 of the German Civil Code restricts this remedy to harassment for sexual reasons. 84. Cf III.B.2.b. 85. Cf III.B.5.c. 86. Cf III.B.5.b.
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C. 1.
Miscellaneous Other Rights
Right of Retention, Section 273, Paragraph (1) of the German Civil Code
The employee may refuse to work without losing his wage claim 87 under section 273, paragraph (1) of the German Civil Code if (i) the mobbing behavior is serious, (ii) the employer does not take action despite knowing about the workplace bullying, and (iii) exercising this 8 8 right is necessary and appropriate to eliminate the harassment. Because of this last precondition a victim has no right to retention if 89 he or she is jointly responsible for the conflict. Exercising the right of retention can be very risky for the employee as he will have to prove that these preconditions are fulfilled; otherwise he will have violated his contractual duties and may be liable for damage claims of the 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 an employee to file a complaint. It is up to the employee to decide which 91 way to pursue; both at the same time or one after another.
87. "If the obligor has a claim that is due against the obligee under the same legal relationship as that on which the obligation is based, he may, unless the obligation leads to a different conclusion, refuse the performance owed by him, until the performance owed to him is rendered (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 der Arbeitswelt, 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. For procedural problems, see BAG Jan. 23, 2007, NZA 1166, 2007. 90. Richard Richardi & Philipp S. Fischinger, Annotation, Employment Law I, in STAUDINGER, BGB, 611, mn. 598 (forthcoming 2011). 91. GOinther Wiese, Zur Dogmatik des Mobbing im Arbeitsverhiiltnis, in FESTSCHRIFr FOR ROLF BIRK 1009,1019 (2008).
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a.
Complaint to the Employer, Section 84 of the Works Constitution Act of 197292
Section 84 Works Constitution Act of 1972 gives every employee the right to file a complaint to the employer if he feels discriminated93 against or unfairly treated or otherwise disadvantaged. As this right derives from the employment relationship, it exists not only in 4 If establishments with a works council, but also in those without. 9 the complaint is justified, the employer has to redress the grievance by taking the necessary and appropriate measures; if he fails to do so, the employee may sue him to ensure compliance. b. Complaint to the Works Council, Section 85 of the Works ConstitutionAct of 197295
Instead of complaining directly to the employer, the employee may file the complaint to the works council (presuming one was elected in the establishment). If the works council deems the complaint to be justified, it has to address the employer and ask for remedial action. If the employer shares the works council's opinion it has to redress the grievance. However, if the employer disagrees, the works council may, at its discretion, 96 apply to the conciliation board (Einigungsstelle) under section 76 of the Works Constitution Act of 1972; the decision of this committee is binding for both parties insofar as 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 competent authority of the establishment if he feels he has been discriminated against or unfairly treated or otherwise disadvantaged by the employer or employees of the establishment. He may invite a member of the works council to assist or mediate." Paragraph (2): "The employer shall inform the 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 disadvantage for filing a complaint." 93. "Discrimination" in this context is not limited to the grounds for discrimination that are prohibited 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, supra note 1, at mn. 53; Lange, supra note 11, at 290. 95. Paragraph (1): "The works council shall be authorized to accept complaints from the employee and, if it considers them to be justified, to influence the employer to rectify the situation." Paragraph (2): "Where differences of opinion exist between the works council and the employer regarding the justification of a complaint, the works council may appeal to the conciliation board. The decision of the conciliation board shall replace an agreement between the employer and the works council. This does not apply if the subject of the complaint is a legal claim." Paragraph (3): "The employer shall inform the works council regarding the handling of the complaint. section 84 II remains unaffected." 96. The employee does not have the power to force the works council to do so. Kollmer, supra note 1, at inn. 52.
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law. 97 In all cases reprisals against the employee who files a complaint are prohibited under section 85, paragraph (3) of the Works Constitution Act of 1972. 3. Right to Demand the Transfer or Dismissal of the Offender
Section 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 wants to take, the employee can demand a transfer or dismissal of the 98 offender only in exceptional circumstances. 4. Right to Demand a Transfer
As a last step before terminating his own employment contract and in particular in cases where the victim cannot demand the transfer or dismissal of the offender, it is possible for the victim to demand his own transfer within the company. Basis for this claim is again section 241, paragraph (2) of the German Civil Code. In its decision of October 25, 2007 the Federal Labor Court had to decide about such a claim: The victim, a physician, was employed at a hospital and claimed that he was mobbed by his supervisor. He claimed that, among other acts, he was insulted, his supervisor ignored his wellprepared presentations, and failed to inform him about the rescheduling of important conferences. Furthermore, he was also accused of being malicious and insufficiently qualified professionally. Although the Federal Labor Court denied the right of the victim to demand a transfer, in this specific case, it seems that, in principle, such a claim could have been established successfully. In such cases, however, transfers are possible only pending the availability of a work The placement that concords with the victim's skills and qualification. 99 In fact job. new a create to obligation employer has, in general, no this disadvantages highly specialized employees as it is often much more difficult for them to name an appropriate alternative workplace."
97. 98. 99. 100.
Wiese, supra note 91, at 1019. Benecke, supra note 12, at 363; for more details see supra Sections III.A.1. BAG May 16,2007, NZA 1154, 2007. Benecke, supra note 12, at 363.
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5. Termination Without Notice, Section 626 of the German Civil 1 "1 Code; Damages, Section 628, Paragraph (2) of the German Civil Code A person feeling harassed may, of course, terminate his employment contract at any time by giving notice. As, under German law, the employee does not have to provide a reason to terminate the contract with notice, in general no legal problems are triggered if the employee decides to do so. Difficulties may arise however, if the victim wants to terminate his employment contract without notice, as this can have a serious impact 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 at the initiative of the employee, without notice, is possible only in exceptional circumstances: First of all, the workplace bullying has to be grave enough that from the perspective of a reasonable person it would be unbearable for the employee to stay on the job until the end of the period of notice (e.g., the victim's health would be endangered 03 or the victim suffered severe112 sexual harassment).1 Second, the termination without notice must be a proportionate action. In general, this is the case only if the employer did not take effective actions to protect the employee although he knew about the problem. Moreover, when balanced against each other, the victim's interests must outweigh the employer's interests. Last but not least, the employee has to observe section 626, paragraph (2) of the German
101. Section (1): "The service relationship may be terminated by either party to the contract for a compelling reason without complying with a notice period if facts are present on the basis of which the party giving notice cannot reasonably be expected to continue the service relationship 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 both parties to the contract." Paragraph (2): "Notice of termination may only be given within two weeks. The notice period commences with the date on which the person entitled to give notice obtains knowledge of facts conclusive for the notice of termination. The party giving notice must notify the other party, on demand, of the reason for notice of termination without undue delay in 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 an unwanted conduct of a sexual nature, including unwanted sexual acts and requests to carry out sexual acts, physical contact of a sexual nature, comments of a sexual nature, as well as the unwanted showing or public exhibition of pornographic images, that takes places with the purpose or effect of violating the dignity of the person 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 giving notice the Federal Labor Court restricts the victim's rights because the Court acknowledges potential legitimate employer's interests that may be impaired by such a termination. 103. Kollmer, supra note 1, at mn. 48; Benecke, supra note 21, at 231.
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Civil Code stipulating that the contract must be terminated within two weeks of the employee obtaining knowledge of the facts entitling him to the termination. However, as mobbing is an ongoing process, this with each event constituting another link in the period re-starts 0again 4 chain of events. In times of large-scale unemployment, the employee's right to terminate his contract without giving notice is more of a blunt instrument than a tool of precision and, in addition, often plays into the hands of the offender who wants the victim to leave the company. However, at least the first of these problems can be alleviated by 05 1 section 628, paragraph (2) of the German Civil Code that states: If the termination 106 is caused by the conduct of the other party in breach of contract, this party is obliged to compensate the damage arising from the dissolution of the employment relationship. This requires that either the employer, a member of his managing or supervisory board, or a person whose behavior is attributed to him pursuant to section 278 of the German Civil Code be the offender or that the employer be in default with regard to his duty to take action against the harassment incidents. In addition, the employer is liable only if he knew about the harassment.10 7 If these preconditions are met, section 628, paragraph (2) of the German Civil Code entitles the employee to full compensation for the non-performance of the contract, in particular for the loss of earnings and a reimbursement of the cost of job applications. However, the Federal Labor Court limits the lostearnings-claim to the period up until the employer would have been able to terminate the employment contract with notice (even if the employer does not have reasons that would legally justify a 0 ' termination)." D. Cut-Off Periods Employment 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 dissolution of 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 employee terminated the contract ordinarily, as long as he would have been able to terminate it without notice. Cf BAG Aug. 8, 2002, NZA 1323, 2002; Sagmeister, supra note 71, at 209. 107. Gerrick v. Hoyningen-Huene, Beldstigungen und Beleidigungen von Arbeitnehmern durch Vorgesetzte, BETRIEBS-BERATER 2221 (1991); Benecke, supra note 21, at 231. 108. BAG July 26, 2007, NZA 325, 2002.
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extinguished if the claimant does not claim them within a certain 0 9 Contrary period of time, e.g., six months ("cut-off periods"). 1 to the period of limitation, cut-off periods lead to the extinction of the claim even if the employer does not argue that. Although such clauses are, in principle, valid as they meet the legitimate interests of both parties 11 in resolving potential legal disputes as quickly as possible, " in the context of this paper they raise three issues. 1. Invalidity Because of Section 202, Paragraph (1) German Civil Code
1 1 Section 202, paragraph (1) German Civil Code . makes it impossible for the employer to limit his responsibility for his own intentional acts in advance. However, as sections 278, sent. (2),112 276, paragraph (3)113 of the German Civil Code demonstrate, it is possible for the employer to restrict his liability for intentional acts by supervisors or coworker in advance." 4
2.
Scope
As the wording of the clause does not refer to the "employment contract" but to the "employment relationship," such clauses cover contractual claims as well as claims based upon a statute (in particular tortious claims).1 5 However, the question as to whether such a clause covers material damages only or also those for pain and suffering is controversial. Whereas most senates' 6 of the Federal Labor Court argue for the first option, the 8th Senate" 7 recently decided otherwise in a case involving workplace bullying. The 8th Senate argued that in the context of cut-off periods there could be no difference between material damages and damages claimed for pain and suffering. This is a convincing argument because the German constitution not only
109. For the purposes of this article it makes no difference if the employment contract itself contains 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 und 111. "In the case of liability for intentional behavior, the limitation period may not be relaxed 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 of persons whom he uses to perform his obligation, to the same extent as for fault on his own part. The provision of section 276 (3) does not apply." 114. Benecke, supra note 12, at 358. 115. BAG Jan. 10, 1974, DB 976, 1974; BAG May 26, 1981, NJW 2487, 1981; cf BAG June 28, 1967, DB 1548, 1967 (offering a different view). 116. BAG Apr. 25, 1972, NJW 2016,1972; July 15, 1987, NJW 791, 1988. 117. BAG Apr. 27, 1995; BAG May 16, 2007, NZA 1154, 2007.
Schuldrechtsreform,RECHT DER ARBEIT 137 (2002).
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protects the right of personality" 8 but also property rights. Section 14, paragraph 1 of the German Constitution stipulates: "Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws." From a constitutional point of view there exists, therefore, no sufficient cause to distinguish between material damages and those for pain and suffering. In such a case section 3, paragraph 1 of the German Constitution ("All persons shall be equal before the law") dictates that both types of damages are treated equally and, therefore, subject to the cut-off period." 9 3. Determining the Start Date of the Cut-Off Period
A 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 the cut-off period starts to run at maturity date. Maturity in this context requires that the employee must have in fact the opportunity to assert the claim, that is, in particular, to quantify it.'2 As "mobbing" is an ongoing process that consists of several individual events, claims for mobbing only mature with the most recent single incident and the cutoff period starts to run again and again.' 2' Although this in fact can render the cut-off period clause useless, it is still an adequate result as the offender that continues to harass the victim is not worthy of the legal protection provided by cut-off periods. Therefore, despite the existence of a theoretically short cut-off period, in practice it is possible to establish a "mobbing" claim based on events some of which occurred decades ago; however, the employer is protected insofar as (i) events that happened long ago are much more difficult to prove (the "obscuring power of time"'22 ) and (ii) the Federal Labor Court requires a continuity between the single events to establish a workplace bullying claim'23 (which may not be the case if too much time elapsed between the single events). E. Periodof Limitation Contractual as well as tortious mobbing claims are subject to the standard limitation period of three years, as established in section 195
118. 119. 120. 121. 122. 123.
See supra Section HI.C.2. Benecke, supra note 12, at 358; Sasse, supra note 14, at 1453. BAG Mar. 27, 1996, NZA 45, 1997; Sasse, supra note 14, at 1453. BAG May 16, 2007, NZA 1154, 2007; Lange, supra note 11, at 293. Motive zu dem Entwurfe des Btirgerlichen Gesetzbuches, Band 1, at 291. BAG May 16, 2007.
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of the German Civil Code. 124 This period runs as soon as the claim is mature and the employee knows about the circumstances that give rise to the claim or would have obtained such knowledge if he had not acted with gross negligence, section 199, paragraph (1) of the German 5 Civil Code.12 Concerning the maturity (and, therefore, the determination of the start date of the period of limitation), the same principles are applicable to cut-off periods as apply to periods of 6 2 1 limitations.
IV. PROCEDURAL QUESTIONS
A.
Burden of Production/Proof
The most important problem that arises in practice in connection with workplace bullying is to prove (i) the harassing acts and (ii) that these acts played a causal role in regard to the harm that occurred. Proving the harassing incidents is in most cases difficult because the offender deliberately tries to avoid acting in the presence of witnesses. The causality, too, is hard to prove, in particular as far as mental illnesses are concerned. To help the employee, the Thuringian Higher Labor Court 2 7 in (Landesarbeitsgericht Thiiringen),' one case, established two alleviations of the standard of proof: First, it stipulated that a medical statement reporting harms that are typical for situations of workplace bullying establishes circumstantial evidence that the harassing acts took place. Second, a close timely connection between the proven harassing mobbing acts and the occurrence of physical and psychological harm establishes a rebuttable presumption as to causality. Although one has to acknowledge that the Thuringian Higher Labor Court tried to help victims that otherwise have often only slim chances to succeed in court, these alleviations are neither convincing nor do they fit into the German procedural law. First of all, it is a circular reasoning to hold that the illness indicates the existence of the harassing 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 claim arose and 2. the obligee obtains knowledge of the circumstances giving rise to the claim and of the identity of the obligor, or would have obtained such knowledge if he had not shown gross negligence." 126. Benecke, supra note 12, at 358; Sasse, supra note 14, at 1453; Rieble & Klumpp, supra note 21, at 380. 127. LAG Feb. 2, 2001, NZA-RR 577 (580) 2001.
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acts and the illness.," Second, the term "harms that are typical for situations of workplace bullying" is much too indefinite to be suitable to constitute circumstantial evidence.12 9 Last but not least, German law typically establishes alleviations of the burden of proof only if the party against whom the claim is asserted has much better knowledge about what happened than the claimant; e.g., this is the case with manufacturer's liability or liability for medical malpractice. However, in situations of workplace bullying the employer typically has no head as most incidents occur in private between start in terms of knowledge 0 13 victim. and offender Because of these reasons it is important to note that the Federal Labor Court refused to establish special rules/alleviations for the burden of proof of a mobbing victim."' Therefore, the employee has not only the onus of proof for the harassing acts but also for the causality between them and the harm occurred. However, if there is a close timely connection between the established fact of harassment and the illness that occurred, the causality between the two is strongly indicated (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 harassing acts, this may provide an indication that the rest of his allegations are
true, too.'
32
As a consequence of this adjudication it is recommended that the employee keep a "mobbing diary"'' 33 in which he tracks all incidents necessary to prove his claim. As he often will not be able to name a witness, at least not for all incidents, he may request to be interrogated 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 causality between the harassing acts and the harm incurred, the victim may request a medical expert opinion (the party that loses the trial bears the costs).
128. Sasse, supra note 14, at 1452; Benecke, supra note 12, at 229. 129. Lange, supra note 11, at 291. 130. Benecke, supra note 12, at 229 131. 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, supra note 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 other proof may make a motion to interrogate the other party about the fact at issue." Paragraph (2): "The motion has to be rejected if it concerns facts whose opposite the court considers as proved."
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B. Action for a DeclaratoryJudgment Because of PotentialFuture Damages In cases of psychiatric and psychosomatic illnesses it is often very difficult to predict how they will develop in the future. The victim runs the risk that they get worse after a couple of years that will not only lead to problems with the period of limitation136 but will also make it much more difficult to prove the facts at issue. In order to alleviate these problems, the Federal Labor Court allows the employee to file a petition for an action for a declaratory judgment stating that the employer is liable for all future damages that are caused by the harassment.'37 If the employee succeeds, the period of limitations is extended to thirty years (section 197, paragraph 1, No. 3 of the German Civil Code138 ) and a court deciding about claims in a future court proceeding is bound by the substantial res judicata. The latter means that the court cannot deny that the harassing acts took place 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 employment law provides a bundle of different rights and possibilities for mobbing victims. 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 a complaint to the employer or to the works council) may also help the victim. Against this background it seems unnecessary to pass a law changing the substantive law in force and creating a special statutory law dealing with workplace bullying, as it is hard to imagine what other remedies such a law could provide.'3 9 However, as favorable as the substantive law may be, the victim always faces the problem of evidence. The Federal Labor Court's refusal to establish a rebuttable presumption for the causality between the harassing acts and the harm occurred makes it, in many cases, very difficult 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, the following claims are statute-barred after thirty years: ... 3. claims that have been declared final and absolute . . 139. Benecke, supra note 12, at 359.
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force this adjudication is certainly convincing. The question however is, whether an amendment to the existing law would be desirable in order to make it easier for the victim to prove the harassment. There is no doubt that mobbing is a condemnable behavior that must be taken seriously and against which all forces within society should strive to fight. On the other hand the principles governing the division of the burden of proof in German law are sound: basically it is up to the claimant to prove the facts at issue to establish its claim. An exception from this rule is appropriate only if it is necessary to balance an "institutional" knowledge deficit of the claimant; "institutional" in this sense means that it must be a typical knowledge deficit arising in situations where the claimant cannot have the same insight into the events that caused the harm. This is, for instance, true for manufacturer's liability as the victim in such cases does not typically have the necessary knowledge about the production process in order to prove that the manufacturer violated his duties. However, in the typical mobbing situation this is not the case: if the harasser is a supervisor or a coworker the employer may not have an idea of what is going on at all; and even if the employer itself is the offender the victim has no knowledge deficit as he is as well acquainted with the situation as the employer. Summing up, the lack of an "institutional" knowledge deficit strongly speaks against a statutory amendment of the German Code of Civil Procedure to alleviate the burden of proof of the victim. Although it may be desirable for the victim in some cases it would severely change a generally well functioning and fair balanced system of burden of proof. In addition, although mobbing may have severe consequences for the victim, compared, for example, to battery (for which no special alleviations of the burden of proof exist) it is not such an extraordinary phenomenon that would require a special statutory regulation of the burden of proof. Also, one cannot generally argue that it is more difficult to prove mobbing compared with proving battery; although the latter may leave one's mark on the victim's body, this is not necessarily the case and, even if there are some marks, it is often difficult to prove that they resulted from some form of physical violence. Therefore, the better arguments speak against such 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 about the serious consequences that may arise of them, but are above all willing to fight actively against harassment of which they become
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aware. In the end the "battle against workplace bullying" will have to be fought (and won) mainly at the workplace itself and not in court rooms.
COPYRIGHT INFORMATION
TITLE: Mobbing: the German law of bullying SOURCE: Comp Labor Law Policy J 32 no1 Fall 2010 The magazine publisher is the copyright holder of this article and it is reproduced with permission. Further reproduction of this article in violation of the copyright is prohibited.

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"MOBBING": THE GERMAN LAW OF BULLYING

(2002), available at http://www.baua.de/de/Publikationen/Forschungsberichte/2002/Fb951.html (translated by the author).

COMP. LABOR LAW & POL'Y JOURNAL

French Law and European

WORKPLACE BULLYING IN GERMANY

COMP. LABOR LAW & POL'Y JOURNAL

Die Mobbing-Klage, 2002

Mobbingvorwurfs und gerichtlicher Priifungsumfang, 2006

WORKPLACE BULLYING IN GERMANY

Mobbing as a Combination of Single Events

COMP. LABOR LAW & POL'Y JOURNAL

Mobbing as a Unidirectional Process

WORKPLACE BULLYING IN GERMANY D. Forms of Workplace Bullying

Injunctive Relief Against the Employer

COMP. LABOR LAW & POL'Y JOURNAL

WORKPLACE BULLYING IN GERMANY

COMP. LABOR LAW & POL'Y JOURNAL

Contractual Damage Claims Against the Employer

WORKPLACE BULLYING IN GERMANY b. Attribution to the Employer

COMP. LABOR LAW & POL'Y JOURNAL

WORKPLACE BULLYING IN GERMANY

COMP. LABOR LAW & POL'Y JOURNAL

Tort Damage Claims Against the Employer a. Claims

WORKPLACE BULLYING IN GERMANY

COMP. LABOR LAW & POL'Y JOURNAL

Synthesis (Damages Against the Employer)

WORKPLACE BULLYING IN GERMANY

COMP. LABOR LAW & POL'Y JOURNAL

WORKPLACE BULLYING IN GERMANY

Summing Up (Tort Damage Claims Against the Harassing Coworker or Supervisor)

Withdraw or Correct Statements

78. See Section III.B.l.d.

COMP. LABOR LAW & POL'Y JOURNAL

Summing Up (Damages Against Employer/Coworker/Supervisor)

WORKPLACE BULLYING IN GERMANY

Miscellaneous Other Rights

COMP. LABOR LAW & POL'Y JOURNAL

Complaint to the Employer, Section 84 of the Works Constitution Act of 197292

WORKPLACE BULLYING IN GERMANY

97. 98. 99. 100.

COMP. LABOR LAW & POL'Y JOURNAL

WORKPLACE BULLYING IN GERMANY

COMP. LABOR LAW & POL'Y JOURNAL

WORKPLACE BULLYING IN GERMANY

118. 119. 120. 121. 122. 123.

COMP. LABOR LAW & POL'Y JOURNAL

WORKPLACE BULLYING IN GERMANY

COMP. LABOR LAW & POL'Y JOURNAL

WORKPLACE BULLYING IN GERMANY

COMP. LABOR LAW & POL'Y JOURNAL

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