Bullying at Work: What are an Employer's Obligations?

The German Federal Labour Court recently clarified an employer's obligations with regard to bullying at work (BAG 25.10.2007 – 8 AZR 593/06). Employers should pay attention to how managers treat their subordinates. Tolerating the bullying of employees can result in vicarious liability for the employer.

Bullying is generally defined as undesirable behaviour that creates an offensive atmosphere (see also the definition of harassment in § 3 III AGG, the General Equal Treatment Act). It often consists of many small but systematic acts that are of little or no importance if regarded individually. However, when taken as a whole, they make their victim feel intimidated and offended.

In an employment relationship, the employer is subject to fiduciary duties such as the duty to protect its employees from harm in the workplace. The employee is therefore entitled to claim protection against the acts of their colleagues that would damage the employee's health and safety. An employer who ignores such claims might become liable for such acts himself. Such liability can be assumed by superiors who are responsible for complying with the employer's fiduciary duty and have the authority to give instructions to the employee.

An employer should ensure that superiors are suitable and qualified to perform the fiduciary duties in order to ensure a bully-free environment. It is recommended that the employer makes them aware of their duties through internal communications, intranet or training sessions. Moreover, a grievance procedure for victimised employees should be implemented. This is still the exception rather than the rule among German employers. However, in the light of recent court decisions employers need to take a more proactive approach. If the employer neglects his duties he runs the risk of claims for damages including monetary compensation.