Bullying at the workplace
Is there an alternative to the so-called bullying lawsuit?
Bullying is a serious problem that not only places a heavy burden on those affected, but also damages the company (loss of productivity and motivation, costs due to increased absences, dissatisfaction in the team, employee* turnover, loss of know-how etc.). Those affected often choose to pursue a so-called bullying lawsuit. An alternative resolution method could be mediation, which both the affected employee and the employer (as part of their duty of care) can suggest.
*where only the masculine form is mentioned in this article, the feminine / diverse form is also included
1. The traditional way: the so-called bullying lawsuite
LAG Schleswig-Holstein, verdict of 11th October 23 - 6 Sa 48/23
Facts of the case:
The parties are in dispute over the payment of compensation for personal suffering. The plaintiff worked as a dental assistant in the doctor’s office of the defendant, who terminated the employment relationship with a letter of termination dated November 24, 2021 (the plaintiff lost her dismissal protection suit in three instances). In the summer of 2022, the plaintiff asserted a claim for damages for personal suffering against her employer in the amount of €40,000.00. In the complaint, she alleged that her health and general personal rights were violated at her workplace. The violations of her legally protected interests were mainly caused by her female colleagues. The colleagues had mocked and ridiculed her because of her origin and her faith, among other things. In addition, they had deliberately and loudly spread false allegations about mistakes she had allegedly made, attributing their own errors to her. Finally, she was harassed by her colleagues because she had decided against receiving COVID-19 vaccination. The defendant employer did nothing about the behavior of her colleagues. The plaintiff stated that she became ill due to the situation at work (stomach pains, circling thoughts, depression, etc.) and submitted medical certificates indicating a bullying situation at work.
The labor court dismissed the lawsuit. The LAG rejected the appeal.
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Reasons of the decision:​
The LAG ruled that the incidents presented by the plaintiff were not sufficient to trigger claims for damages for personal suffering. Systematic acts of bullying with an intrusive quality were not recognizable. Contrary to the plaintiff's opinion, a breach of duty was not proven by the submission of the medical certificates. Even if a doctor identifies a “typical bullying-related” diagnosis, this does not prove that the alleged acts of bullying were cause for this medical condition (see also BAG, verdict, 16th of May 2007 - 8 AZR 709/06 - para. 93). Furthermore, the medical certificate does not prove that the alleged acts of bullying actually took place. Additionally, the court could neither perceive any violation of protection or duty of care obligations by the defendant, nor could the defendant be held accountable for the conduct of the plaintiff's colleagues, since he had no knowledge of it. Despite the plaintiff’s claims that the defendant was aware of the bullying incidents, the court asserted that her submission was too vague. The plaintiff had not provided a detailed account, includingchronological order of the specific behaviors of her colleagues she claimed to have reported to the defendant.
2. Mediation as an alternative to the so-called bullying lawsuit?
Many so-called bullying lawsuits are dismissed for reasons similar to those of the Schleswig-Holstein Higher Labor Court: The statement of claim is deemed too vague. Repeatedly, those affected are neither able to prove the specific acts of bullying in detail and in chronological order, nor to establish a causal link between the corresponding acts and the medical diagnosis. Specifically, a medical certificate attesting that the complaints are attributable to bullying behavior at the workplace cannot be used as evidence that acts of bullying actually occurred- after all, the doctor was not present. However, regardless of the outcome of legal proceedings, i.e. even if the plaintiff wins, the legal dispute is formally decided at the end of the proceedings, but the conflict in the company is not resolved. This is particularly problematic if - unlike in the case mentioned above - the employment relationship is to continue, as the situation in the workplace remains unchanged; on the contrary, the court proceedings may have exacerbated the situation.
In contrast to court proceedings, mediation aims to resolve the conflict by reaching an agreement all parties are satisfied with. It can present the better method of resolution especially if the (working) relationship between the parties involved in the conflict is to continue and the conflict is to be resolved permanently and sustainably. This is promoted by the fact that, despite the conflict, appreciative and constructive communication takes place during mediation, which helps to maintain or restore the relationship. ​​
Overview of the characteristics of a judicial bullying lawsuit and mediation:​
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Bullying lawsuit
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The objective of the legal process is to resolve the legal dispute; it is not intended to resolve the underlying conflict.
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Burden of presentation and proof: Only legally relevant matters are considered. The plaintiff must demonstrate and prove that an act of bullying occurred which led to a violation of legal interests. Note: The submission of a medical certificate stating that health complaints are attributable to an act of bullying is not sufficient, as referenced in the above decision.
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Factual Level: The legal dispute is conducted on a factual level.
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Decision by a third party: An impartial judge, not involved in the conflict, makes a binding decision on the legal dispute.
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Public Proceedings: Cases before the labor courts are generally public.
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Typically no improvement in the relationship: Due to the confrontational nature of court proceedings, the facts of the case are often presented in the most extreme manner possible, which tends to negatively impact the restoration of a good relationship between the parties.​
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The objective of mediation is to achieve a lasting resolution to the conflict.
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Consideration of the entire subject matter of the conflict: In mediation, legal bases for claims, evidence or legal jargon are irrelevant. It is an autonomous process determined by the parties involved.
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Addressing the core of the conflict: Mediation addresses the conflict not only on the surface level of the issues at hand but also on the relationship level.
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Creating solutions independently: The parties to the conflict decide for themselves what it takes to resolve their conflict, making the solution more sustainable. The jointly reached agreement replaces the verdict of an uninvolved judge.
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Confidential: Mediation is a confidential process.
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Improvement of the relationship: Mediation aims to restore and promote positive dialog between the conflicting parties..​
Author of this article: Janina Aue, Lawyer & Mediator
Please feel free to contact me to discuss how me might work together.
