Mobbing or bullying – this term seems to be used today for even the smallest misconduct in the workplace. In fact, there is much more to bullying than a one-off verbal lapse or a supposedly unfair task. Rather, it is about systematically wearing down a colleague.
When is bullying actually taking place?
It is not always bullying when an employee is treated unfairly from his or her perspective. The definition of bullying is based on two main requirements: The harassment must occur systematically and repeatedly, i.e. over a longer period of time. Bullying can take on different forms. Typical, however, are these behaviours on the part of the person being bullied:
- Gratuitous criticism that doubts the competence of the bullied person in its entirety
- Ridicule and malice for clothing, figure or hairstyle
- Unfair and sometimes false assessment of performance by the boss
- Social exclusion (e.g. from conversations, joint lunches, departmental meetings)
- Deliberately spreading lies to damage the reputation of the person concerned (also defamation)
- Sabotage (e.g. manipulation of the computer, telephone terror)
- Frequent inspections of work without reason
- Withholding information
- Sexual harassment, intimidation tactics and threats of violence.
- Underchallenging (being given tasks that are far below the level of the person concerned, e.g. copying folders)
- Over-demanding (delegation of tasks whose demands are not manageable)
How bullying happens
Some victims unconsciously contribute to the fact that they are the victims of bullying attacks. This may be due to a good relationship with the superior, outstanding performance or deviating private circumstances. Even a wrong word or sloppy clothing can be enough. The causes of the boss’s or colleagues’ misbehaviour, however, lie in their own sphere, for example if they are over- or under-challenged or suffer from boredom. They use bullying as an outlet to try to relieve pressure.
Why employers should not tolerate mobbing
Systematic bullying leaves its mark on the victims:
- mental illnesses such as depression or eating disorders
- feelings of powerlessness and helplessness
- reduced self-confidence
- health problems such as sleep disorders, back, head or stomach pain, cardiac arrhythmias, breathing problems
- Alcohol or drug abuse
- suicidal (thoughts)
These consequences have a long-term impact on the employment relationship. The number of sick days can increase significantly. In addition, the attacks often reduce the person’s work performance. Irrespective of these factors, however, the employer is also obliged to investigate suspicions of bullying. The reason for this lies in its duty of care under labour law.
The employer’s duty of care in cases of mobbing
Various secondary duties arise from the employment contract. These include the so-called duty of care. The employer is obliged to protect the employee from physical and psychological risks to his/her health and to safeguard his/her legitimate interests. If the employer learns of bullying incidents, he must investigate, clarify and verify them. The credibility of those involved and of any witnesses plays a particularly important role. It is also important to distinguish between one-off incidents and frequent acts of bullying. The employer must weigh up whether the personal rights of the person concerned have been violated or whether the boss or colleagues are facing an unjustified accusation.
What employers can do against mobbing
If the suspicion of mobbing is confirmed, the employer should act immediately and take action against it. If the conflict is not too far advanced, it can often be de-escalated through mediation. The following measures are useful:
- Mobbing diary: The victim should carefully document all incidents in a diary and collect evidence (e.g. emails). The diary serves as evidence in any court case. In addition, it is an important basis for explaining the reasons for dismissal in the case of dismissal on grounds of conduct.
- Gentle measures: If the conflict is not too far advanced, mediation, issue supervision or coaching could have a de-escalating effect.
- Labour law consequences: In order to fulfil its duty of care, the employer should exhaust the entire spectrum of labour law. He can issue a warning or a caution, transfer the bully to another workplace or, as a last resort, dismiss him. The basis for this is the mobber’s breach of his or her duty of loyalty, according to which he or she is obliged to maintain industrial peace.
- Transfer of the victim: With the consent of the victim of harassment, he or she may also be transferred to another area of work in order to resolve the matter.
Breach of duty of care: what are the consequences?
If the employer ignores the allegations and does not take the necessary measures, he is in breach of his duty of care under his employment contract. In this case, the employee is entitled to compensation for the damage caused. For example, he or she can claim compensation for pain and suffering for health consequences, monetary compensation for the violation of his or her personal rights or compensation for financial losses (e.g. loss of earnings due to prolonged illness). If the employee is discriminated against on the basis of a characteristic described in the General Equal Treatment Act (AGG), a claim for damages under the AGG may also be considered. This is the case if the mobbing is based on:
- ethnic origin,
- sexual orientation.
Attention: Bullying is legally relevant not only for the employer, but also for the bully himself. Mobbing itself is not punishable in Germany because there is no anti-bullying law. However, individual behaviours of the perpetrator of mobbing can be relevant under criminal law. Depending on the nature of the offence, the offences of insult, defamation, slander and bodily harm may be considered.
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