According to the federal government, approximately 2.7% of employees in all age and occupational groups are mobbed.
General provisions regarding mobbing at the workplace
What specific actions should be attributed to mobbing in the workplace?
Mobbing includes systematic and targeted mental and behavioral actions that interfere with a person's privacy in the form of:
Mobbing is evident when an employee must be forced to leave his job in this way. Thus, the Regional Labour Court of the Federal State of Rhineland-Palatinate recognized the existence of mobbing in the case before it (LAG Rheinland-Palz, Urteil v. 16.08.2001, Az: 6 Sa 415/01). The point was that after the bank merger, the bank's director was cut off his decision-making powers despite an employment contract and was not allowed to give instructions to employees about their work for months at all.
Mobbing can also include clearly excessive demands on work performed and its results and the implementation of excessive control measures at work (LAG Baden-Württemberg, Urteil v. 27.07.2001).
We can also talk about mobbing when there is a disproportionate reaction to certain behavior and a certain state of the employee being bullied. Thus, the Kiel Labor Court recognized the existence of mobbing when the employee concerned, due to his absence from work for 9 days due to illness, was then warned 9 times due to his alleged late arrival to work (ArbG Kiel, Urteil v. 16.01.1997, Az: 5 d Ca 23.06/96);
Mobbing certainly includes threats to health, for example, through intent to commit physical or sexual violence.
Compulsion to do work that is harmful to health, to refuse to follow guidelines on the progress of work and how to do it, which can lead to material damage, as well as the constant assignment of the most difficult and difficult or pointless work, should also be considered mobbing.
Are there any general criteria for determining whether mobbing exists?
No A condition for mobbing in relation to someone can be considered the continued improper or unfavorable behavior of another person or persons in the workforce. Of course, it is impossible to determine exactly at what point mobbing begins. On a case-by-case basis, mobbing is caused by certain circumstances that should be taken into account when evaluating it. Only this makes it possible to proportionately assess mobbing and its impact on a particular person and take measures to stop it.
Does labor law prohibit mobbing?
Yes, sure. According to articles 1 and 2 of the country's Basic Law, mobbing is considered an infringement on individual rights, honor and health protected by all. The legal consequences of actions referred to as mobbing depend on the type and content of the rights and obligations in force. This may include the duties of the employer and the representative bodies of employees at the enterprise, as well as the rights of the employee himself.
Is there a legislative need for the country to develop a special law on protection against mobbing?
No Even if other European countries, such as France and Sweden, have chosen this path, Germany is using, and not without success, other legal options, as well as opportunities for appropriate actions to effectively protect against mobbing.
Employee rights in terms of protection from mobbing
How can an employee protect himself from mobbing?
An employee has a number of legal options to protect themselves from mobbing by colleagues, their immediate supervisor, and even the employer himself. These features include:
But, first of all, it is recommended that the victim of mobbing inform the employer about this in a timely manner, as this is one of the necessary conditions for exercising their rights. On this basis, the enterprise can develop an intervention strategy, for example, through a manufacturing agreement, as well as intermediary actions outside the enterprise that could be initiated by fishing supervision or industrial inspection.
Can an employee demand from colleagues, his immediate supervisor or the employer himself to stop mobbing in relation to him?
Yes, of course, according to § 1004 Abs. 1 Satz 2 BGB analog, § 823 BGB. This employee right stems from the requirement to protect universal individual rights from any type of infringement and applies to absolutely all its legal values, including life and health. If there is a risk of such actions being repeated, this right requires judicial intervention, primarily when regular mobbing continues for a long time.
In what form and to whom can an employee file a complaint?
First of all, an employee in an enterprise, under his private right, is given the opportunity to file a complaint with the competent representative body of the labor collective — the works council, the council of employees and officials or the Commissioner for Equality, if this employee is disadvantaged by the employer or other employees of the enterprise or are unfairly treated by them, or his private interests are otherwise infringed upon (§ 84 BetrVG). This right exists regardless of whether the enterprise has a works council. In case of doubt (about the merits of the complaint), the employee's immediate supervisor is competent. If the complaint is ignored, it can be addressed to the employer. There is no specific form for a gill and there is no time frame for its consideration. The complaint may be served to a specific member of the works council as a trustee (§ 84 Ab.1 Satz 2 BetrVG).
If the enterprise has a works council, the employee has the opportunity to involve it in the consideration of his complaint. This board is obliged to accept and consider the complaint on its merits, and if it proves to be fair, seek help from the employer (§ 85 Ab.1 BetrVG). If the employer finds the complaint justified, or this happens at the insistence of the board, the employee has the right to seek the necessary measures to address it, including seeking assistance from the labor court.
Government enterprises have the right to file a complaint with a representative body of employees and officials (Personalrat), according to the Bundespersonalvertretungsgesetz (§ 68 Abs. 1 Nr. 3 BpersVG) or relevant provisions of the Landespersonalvertretungsgesetze.
In the case of sexual harassment, which may be associated with mobbing, the right to file a complaint is regulated by the Workers' Protection Act — Beschäftigtenschutzgesetz (§ 3 BeschSchG). If this concerns a disabled employee and the company has representation of such employees (§ 95 Abs. 1 Nr. 3 SGB IX), then, of course, he should be involved in the consideration of the complaint.
What consequences does an employee expect if his complaint is objectively incorrect? Is he obliged to pay damages to the person he slandered?
Unfortunately not. According to the statutory prohibition on infringing on the interests of an employee (§ 84 Abs. 3 BetrVG; § 4 Abs. 3 BeschSchG; § 612 a BGB), if the complaint about mobbing was objectively not substantiated, but since the employee, although subjectively, felt impaired in his rights, disciplinary measures cannot be applied to him, except that speech it's about abuse. Therefore, giving him a warning, transferring him to another job or dismissing him from his job is invalid by law (§ 134 BGB).
It turns out that there are no legal consequences for an employee who biased complained about mobbing towards him. That's not really true. According to legal practice, only if an employee who filed such a complaint is deliberately contradicted to the truth about the alleged use of mobbing can be compensated for moral damage.
Can the works council of an enterprise act without waiting for a complaint from a person affected by mobbing?
The Works Council (Betriebsrat), like the employer, cannot protect their employee who has been affected by mobbing without a specific complaint about damage to him as an individual and take the measures required in this situation (§ 75 Ab.2 BetrVG). The same applies to the representative body of employees and officials (Personalrat) in accordance with the relevant legal provisions (§ 68 Abs. 1 Nr. 2 bpersVG bzw. der entsprechenden Bestimmungen der Landespersonalvertretungsgesetze).
In justified cases, these representative bodies in private and public enterprises and institutions may require the employer to take the necessary measures to stop labor mobbing. In particularly difficult cases, these authorities may even demand the dismissal of an employee (boss) who has resorted to mobbing against his colleague (subordinate) — § 104 BetrVG.
If mobbing is used by an employer, the works council may apply to the labor court to force the employer to stop such actions against an employee he does not like. In case of repeated such actions, the employer faces a fine of up to 10,000 euros.
Where can an employee assert his right against a colleague (boss, employer) who used mobbing against him?
Labour courts are competent to decide on legal disputes of this type. This is valid both for complaints against the employer (§ 2 Abs. 1 Nr. 3 a ArbGG) and for complaints against a relevant colleague, supervisor (§ 2 Abs. 1 Nr. 9 ArbGG).
Can an employee, if the employer does not take measures against mobbing, refuse to work without fear of losing his earnings?
Yes. First of all, in cases of mobbing, an employee can stop working without losing his earnings under the general provisions of the right (Leistungsverweigerungsrecht) to refuse to perform obligations arising from an employment contract (§§ 273 Abs. 1, 615 BGB). However, the condition is that the employee must first inform the employer that the employer, by not taking measures to prevent mobbing, is thereby violating the employment contract, and ask the employer to implement these measures within a commensurate period.
If mobbing exists in the form of sexual harassment, the employee subjected to this action may stop working without losing his earnings under the already categorical employee protection law (§ 4 Abs. 2 BeschSchG) if the employer or supervisor is unwilling or unable to take the necessary measures to prevent sexual harassment. When it comes to the life and health of a pregnant employee in such cases, the termination of work without loss of earnings is carried out on the basis of the Maternity Protection Act (§ 3 Abs. 1 Mutterschutzgesetz — MusCHG), which states the continuation of payment of earnings in this case in § 11 MusCHG
Can an employee who has been mobbed resign in an extraordinary way, i.e. without prior notice, or terminate an employment relationship with an employer by concluding a termination agreement by mutual consent of the parties?
In particularly difficult cases, an employee has the right to terminate his employment relationship under a special, extraordinary procedure. This procedure for the dismissal of an employee, however, requires that the employee, before exercising the right to refuse to perform his duties, constantly but unsuccessfully urges the employer to stop mobbing in the workforce against him. In addition, an employee who is systematically mobbed has the opportunity to terminate his employment relationship with his employer by concluding a termination agreement by mutual consent of the parties.
However, even when the Federal Employment Agency recognizes mobbing and sexual harassment at the workplace as an important reason why an employee is not responsible for the termination of his employment relationship, he still runs the risk of not receiving unemployment benefits (the so-called Sperrfrist according to § 144 Abs. 1 Nr. 1 SGB III) for three months if he has not previously addressed this problem with his employer, and the latter did not promise him to take all necessary measures within a commensurate period to stop mobbing in the workplace. Of course, if a dismissed employee is subject to a prohibitive period for granting unemployment benefits by the local employment agency, he can file an objection and, if refused, go to the Social Court.
Is a person who uses mobbing against other people criminally punished?
As a rule, yes. Human behavioral actions referred to as mobbing are fundamentally recognized by current criminal law as punishable. The Criminal Code (Strafgesetzbuch — StGB) punishes such acts as bodily harm (§ 223 StGB), insult (§ 185 StGB), spreading bad word (§ 186 StGB) or defamation (§ 187 StGB), as well as extortion (§ 240 StGB).
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