Bullying is not a legal term. There is no law that prohibits bullying, and no specific offense under which a case can simply be categorized. This is precisely where many cases fail. In court, what matters is not the general feeling that something is wrong, but rather the chain of individual incidents that can be proven and, in their context, reveal a systematic form of denigration.
This transition is the real work. Anyone who describes how the atmosphere has been unbearable for months will be asked: What exactly happened on March 14th? Who was present? What was said? How did you react? Who did you contact? Those who can answer these questions have a good chance of success. Those who cannot will lose, even if they are in the right. Therefore, this article begins not with claims, but with the presentation of evidence.
We are Smart Employment Law, a law firm with two offices in Hamburg specializing exclusively in employment law. We advise and represent employees, employers, and works councils. Because we are familiar with conflicts from both the company and works council perspectives, we can assess which steps within a company will actually achieve results and which will only escalate the situation.
The most important information at a glance
- Not a separate offense: Claims arise from the right to privacy, the employer's duty of care, and the Equal Treatment Act.
- Systematics decides: What is needed is a continuous, progressive approach. Isolated conflicts or justified criticism are not enough.
- The burden of proof lies with you: You must describe the incidents. Therefore, careful documentation including date, location, witnesses, and verbatim account is crucial.
- Claims: Injunction, removal, damages for pain and suffering, reimbursement of treatment and lost earnings costs, and compensation for discrimination.
- Complaint first: The employer must intervene as soon as they become aware of the issue. A written complaint provides verifiable proof of this awareness.
- Deadlines: A two-month deadline applies to claims for compensation under the Equal Treatment Act. Contractual limitation periods may preclude further claims.
What bullying means legally and what it doesn't.
Legal precedent defines mobbing as the systematic harassment, bullying, or discrimination of employees by colleagues or superiors. The decisive factor is not the individual act, but its context. Only the combination of several incidents over a longer period constitutes a violation of the general right to privacy or health, to which the law attaches claims.
Equally important is the counter-example. Not every stressful behavior is bullying. A factually justified Warning letter in employment law It is not, nor is an unpleasant performance review, a transfer under the employer's right to direct employees, the denial of a vacation request, or a single heated argument. A poor working atmosphere alone is also insufficient. Those who fail to draw this line risk having legitimate points overlooked in the proceedings.
Typical actions that carry weight in jurisprudence include: the systematic removal of tasks, the permanent assignment of meaningless or clearly inferior activities, the deliberate exclusion from information flows and meetings, repeated belittling in front of colleagues, the spreading of untrue claims, sexual harassment, and unjustified surveillance.
How far workplace monitoring is allowed to go is discussed in the article on... Workplace monitoring.
Why legal proceedings fail due to lack of evidence
The burden of proof lies with you. You must describe each incident in such detail that the court can gather evidence. General statements such as persistent harassment or constant denigration are insufficient because they cannot be verified.
Therefore, keep continuous documentation. For each incident, note the date and time, the location, the people involved, the verbatim content of the statement (if possible), who else was present, and the consequences of the incident. Also, record when you contacted whom and what happened next. Write objectively and without judgment, as a text that sounds like an accusation loses its persuasive power.
Here are two practical tips for documenting your records. Keep them privately and not on company equipment, so they remain available to you even after a leave of absence. And refrain from secretly recording conversations. Such recordings are generally inadmissible as evidence and could, in turn, justify your dismissal, thus harming your own position.
In addition to your own notes, witnesses, emails, chat messages, revised task lists, organizational charts, performance reviews, and medical records are all relevant. If the case involves discrimination based on gender, origin, religion, disability, age, or sexual orientation, the burden of proof is eased: sufficient circumstantial evidence means the employer must prove otherwise. Our article on this topic explains how this works in practice. AGG compensation for discrimination.
Your claims in detail
Omission and removal
You can demand that certain behavior cease and that unlawful measures be reversed, such as the removal of duties or an unauthorized transfer. This claim is directed against the employer and, depending on the case, also against the individual responsible. It can be enforced through expedited proceedings if urgent.
Compensation for pain and suffering and damages
In cases of personal rights violations or health impairments, compensation for pain and suffering may be awarded. The amount depends on the duration, intensity, and health consequences of the violation, and legal rulings range from a few thousand euros to five figures. In addition, you can claim compensation for material damages, such as medical expenses, co-payments, therapy costs, and lost earnings if you have lost income due to the illness.
Compensation under the Equal Treatment Act
If the behavior is linked to a protected characteristic, it constitutes harassment within the meaning of the Equal Treatment Act. In such cases, an independent claim for compensation exists, which does not require proof of fault and can be asserted regardless of any actual damage. This approach is often more effective because the burden of proof is lower.
Right to refuse performance
In cases of harassment as defined by the Equal Treatment Act, you can stop working without losing your right to pay if your employer fails to take appropriate action despite your complaint. This is a drastic measure with a high risk, because if the necessary conditions are not met, it could be considered a refusal to work. Do not use it without prior legal review.
The employer's duty to intervene
Your employer owes you protection. They must safeguard the life, health, and personal rights of their employees and intervene in conflicts. If a supervisor acts, the employer is generally responsible for this behavior. If colleagues are bullying you, the employer is liable if they fail to take action despite having knowledge of the situation or having reason to believe it.
Possible measures include discussions, a warning or reprimand of the person involved, separating the parties through reorganization, transferring the perpetrator, and, in case of repeated offenses, their dismissal. The direction is crucial: the most obvious measure is not your transfer. Transferring the victim can itself be considered a disadvantage.
The route via complaint
Legally and tactically, a written complaint is the most important step because it documents the employer's knowledge of the issue. Only from this point on can they be accused of negligence.
Formulate your complaint objectively, listing the incidents, including dates, and clearly requesting a remedy within a reasonable timeframe. Submit it to the HR department or management and obtain confirmation of receipt. Additionally, you can contact the works council, which has the right to advocate for you, as well as the representative for severely disabled employees, the equal opportunities officer, the company doctor, or the complaints office under the Equal Treatment Act.
If there is no response or if you suffer disadvantages as a result, this is a strong argument in further proceedings. A prohibition against discrimination explicitly protects you from being treated worse because of a complaint. If a warning, transfer, or dismissal follows shortly thereafter, we will examine the temporal connection.
Special case: Mobbing by superiors and bossing
If the behavior originates from a manager, the legal situation shifts in your favor. The employer is generally responsible for the actions of their superiors because they exercise the right to give instructions on their behalf. In such cases, you do not have to prove that management was aware of the incidents.
The crucial practical distinction lies in the difference between legitimate management and harassment. Instructions, targets, performance reviews, and monitoring are all part of the employment relationship. The line is crossed when measures demonstrably no longer serve any objective purpose, for example, when consistently assigned lower-level tasks despite available suitable work, when targets are unattainable, when the level of monitoring is solely for the employee, or when criticism is regularly voiced in front of others.
Therefore, always include a comparison in your documentation: How are colleagues in the same position treated? This comparison is often the most convincing element because it reveals the lack of an objective justification.
Deadlines you need to know
Over time, those affected lose more rights than they possess. Compensation claims under the Equal Treatment Act must be asserted in writing within two months of becoming aware of the discrimination. In cases of ongoing discrimination, the deadline begins with the most recent incident, which is why maintaining continuous documentation is helpful.
Claims for damages arising from the employment relationship are subject to the limitation periods stipulated in the employment contract or collective bargaining agreement, often three months. However, such clauses cannot preclude claims arising from intentional infringements of rights. Regardless, the three-year statute of limitations applies. Furthermore, anyone who only reacts after several years faces a practical problem: witnesses no longer remember the events, and documents have been deleted.
Health, sick leave and ability to work
Ongoing workplace conflicts can lead to illness, and this is not a marginal phenomenon but often the root cause. Take complaints such as sleep disturbances, exhaustion, anxiety about the commute, or physical symptoms seriously and seek medical advice. This is also legally relevant, as documented health impairment supports your claims. Ask your doctor to record the connection to the work situation in your medical records.
However, a prolonged period of incapacity for work also has a downside: it can later form the basis for a dismissal due to illness Anyone who is absent from work for more than six weeks a year is entitled to company-sponsored reintegration management, where the underlying causes can be addressed. Take advantage of this process instead of avoiding it, and seek support throughout the process.
If the burden becomes too great, talk to your doctor or a counseling center about it, not just your lawyer. We can develop a clear strategy for the legal aspects; for the health-related aspects, you need professional support.
If you want to leave: waiting period and severance pay
Many of those affected ultimately want only one thing: to get out. That's a legitimate decision, but it needs to be prepared for, otherwise it will cost extra money.
Resigning from a job generally results in a twelve-week waiting period before receiving unemployment benefits. This is different if there is a valid reason, which can include persistent bullying. The usual requirement is that you have previously requested the employer to remedy the situation in writing, given them a deadline, and that you can document the facts, ideally with a doctor's certificate. Without this prior documentation, the employment agency usually does not recognize the reason as valid.
Often, a termination agreement is the better option because it addresses the waiting period for unemployment benefits, specifies the required reference letter, and may include a payment. What should be included in such an agreement is explained on our website. Have your termination agreement reviewed, the orders of magnitude in the guide to Severance pay upon termination. Conversely, if you receive a dismissal for misconduct, Because the conflict is attributed to you, the three-week deadline applies. Unfair dismissal claim before the labor court.
What you should do in the first few weeks
- Start documentation: Record incidents privately and objectively, including date, location, witnesses and wording.
- Speak to witnesses: Clarify who would be willing to confirm observations and note that down.
- File a complaint: In writing, with a deadline and confirmation of receipt.
- Involve support: Involve the works council, the representative for severely disabled employees, the company doctor or the complaints office.
- Protect your health: Have it checked by a doctor and document its relevance to the work situation.
- Meet deadlines: Claims must be asserted in writing within two months and within any contractual exclusion periods.
And here's a tip that proves effective in practice: Don't react in kind. Anyone who escalates the situation, refuses to do anything, or embarrasses colleagues gives their employer grounds for dismissal and loses the role that protects them.
Frequently asked questions about workplace bullying
Sort first, then act
In cases of workplace bullying, the first step is rarely to file a lawsuit. A more sensible approach is to take a clear-eyed look at the situation: Which incidents can be documented, which claim is valid, what deadlines apply, and what is your goal – remaining with the company or making an orderly exit? If you would like to discuss this further, Describe your case to us. The initial consultation with a brief assessment is free of charge, and we will get back to you promptly.
author
Raphael Lugowski
Raphael Lugowski is a specialist lawyer for employment law and has been advising employees, works councils, and staff councils in all areas of individual and collective employment law since 2016. His areas of expertise include: protection against dismissal, termination agreements, works constitution law, and employment law at the intersection of digitalization and AI.
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