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Are you threatened with dismissal due to bullying or depression, or are you being bullied and want to defend yourself? We are specialists in employment law issues relating to bullying, depression, protection against dismissal and severance pay. Find out everything you need to know now!
Workplace bullying has become increasingly visible since it was given a name and a precise definition. According to statistics, at least one in ten people have experienced bullying at work. It takes place regardless of industry and company size, gender and qualifications. The bossing variant - harassment by the superior, the boss - is also widespread. But when is it really bullying and what can be done about it, apart from finally dismissing someone for bullying?
In terms of labor law, it is precisely defined which characteristics are decisive for bullying:
The actions of the other person(s) must be systematic. Only when they are purposeful, with the intention of offending and insulting the other person, can the bullies no longer excuse themselves by saying that they didn't mean it that way and that it was just a slip of the tongue.
It is also characteristic of bullying that there are repeated incidents. Not everything that those affected perceive as an attack is necessarily an attack. In order to be able to take action against bullying under employment law, the assaults and situations need to be documented in detail over a longer period of time.
The bullies show a lot of ingenuity, often alternating between different methods. Sometimes tools disappear, other times files on the computer are deleted or personal items are damaged. This makes it more difficult for victims to prove the bullying. Nevertheless, every effort should be made to fight back as early as possible. Anyone who has ignored or even tolerated the harassment for a long time becomes a target for this reason alone. The perpetrators regularly test how far they can go. We will be happy to advise you after the first incidents on how you can prove the bullying and defend yourself without resorting to the last resort of dismissal.
We also advise employers in detail on how they can help victims of bullying and under what conditions the perpetrators can be dismissed. As an employer, you are legally obliged to act on the basis of Section 241 of the German Civil Code (BGB). The employer's duty of care for its employees stipulated therein states that it must protect both health and personal rights. Bullying is an offense that can violate both. The dismissal of an employee must therefore be weighed up.
Bullying incidents are not a matter that only affects perpetrators and victims. Bullying is also made possible by those who look the other way. Others become bystanders and followers. This also unsettles the victims.
The causes - from colleague to bully
Frustration and stress at work, a poor working atmosphere, overwork and a lack of organization are factors that sometimes look for an outlet. In such situations, it is usually the quiet, introverted colleagues who are more likely to be affected, as they become lightning rods. What worked once is repeated. Personal circumstances, physical appearance or certain characteristics of the victim are also enough for the perpetrators to start bullying campaigns.
Envy and rivalry are also often among the causes. They do not necessarily have to arise exclusively among colleagues; it is quite common for superiors to try to boost performance by inciting and provoking competitive thinking. If this is the cause of bullying, it also affects particularly proven and successful employees. Those who cannot keep up resort to unfair methods in order to achieve their own goals.
According to surveys, colleagues and superiors are equally likely to be bullies. Women are much more likely to be victims, but also perpetrators. The fact that bullies can be found at all levels within a hierarchy makes it difficult to get help. Contact persons in larger companies can be equal opportunities officers or the works council. It is also easier to find someone you can confide in. In small companies, the situation can be more difficult. Outside help is useful here to clarify the factual and legal situation.
People who are regularly bullied rarely put up with it for long. The constant psychological stress soon has consequences. Insomnia, restlessness, stomach problems, headaches and back pain, depression and even suicidal thoughts cannot be ruled out. Even resigning because of bullying is an emergency solution that can be associated with many disadvantages. It is better to find out about your legal options and take action.
If company measures against bullying are ineffective, the only remaining option is criminal prosecution. Aspects relevant under criminal law include, for example, insult, defamation, slander, bodily harm and damage to property. Violations of the General Equal Opportunities Act can also be prosecuted.
The Works Constitution Act (BetrVG) imposes special duties of care on employers towards their employees. These duties of care require them to protect their employees from health hazards, including those of a psychological nature. This gives rise to a duty to act in the event of bullying, which can go as far as dismissal.
Employees have the right to complain to their line manager if they feel disadvantaged. Corresponding regulations can also be found in the BetrVG. The employee cannot demand that the employer terminate the employment contract due to bullying. However, the line manager is obliged to investigate the allegations of bullying.
As an employer or line manager, you have to walk a difficult tightrope. On the one hand, you must protect the complaining employee from personal injury; on the other hand, you must not allow yourself any unjustified accusations of bullying. It's a long road to dismissal - and that's a good thing for everyone involved. Take the time to clarify the facts. If the truth of the bullying situations described is confirmed, the time for dismissal is still a long way off.
This will not stand up in a labor court without solid evidence. Encourage the employee to keep a bullying diary and collect verifiable acts of bullying such as derogatory emails or social media posts. As the employer, you bear the burden of proof after a dismissal due to bullying.
The employer's response to bullying goes through various stages of escalation - culminating in dismissal due to bullying. Initially, there are various psychological methods at work that may be able to defuse the conflict. Team coaching or team supervision is possible in order to disclose conflicts and work on a joint solution. A mediation process can also help to de-escalate the bullying atmosphere. If the situation cannot be resolved through 'gentle' measures, employers in larger companies may have the option of transferring employees in order to take the tension out of the team. If none of this helps, there are warning stages before dismissal. You can warn an employee against whom there are clearly verified allegations of bullying to change their behavior. In the next stage, the warning, you threaten the employee with dismissal for bullying and demand that they change their disruptive behavior. If the clearly identified perpetrator does not refrain from his behavior, you will have to put your money where your mouth is and issue a dismissal with notice, or an extraordinary dismissal in the case of particularly serious violations. This is because the guilty employee has repeatedly breached his duty of loyalty under his employment contract, which requires him not to disturb the peace in the company and to behave in a manner that promotes the company.
Bullying limits the productivity of entire departments. The number of sick days also increases dramatically when this type of behavior becomes entrenched. As an employer in a modern company, you should focus on prevention rather than dismissal. This includes
- a company agreement on dealing with bullying
- the qualification of bullying officers
- Team development measures
- Well-organized integration of new employees
- Coaching for managers on conflict resolution and communication skills
If you, as the employer, have already spoken to the bully without success or have already warned him, you can give notice of termination because of bullying. In addition to ordinary termination, in special cases you also have the option of giving notice of termination without notice because of bullying. This extraordinary termination can be justified, for example, if bodily harm had occurred. We advise you in detail which facts entitle you to give notice of termination because of bullying and what you have to consider when doing so.
If your health is constantly threatened by bullying and all other measures have not worked, dismissal due to bullying may be a sensible option. However, you must observe a few basic rules to ensure that you are not subject to a blocking period when receiving unemployment benefit, as is usual in the case of dismissal by the employee. We will advise you in detail on how you can protect yourself in the event of dismissal due to bullying. We will show you your options in detail with regard to the issuing of references from this employment relationship or the prevention of bullying for your professional future.
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