Dismissal due to mobbing: legal consequences for both sides

Unfortunately, mobbing at work is widespread. Employees who systematically harass or discriminate against others must fear serious consequences under employment law, up to and including immediate dismissal due to mobbing. For those affected, resigning or signing a termination agreement can also have far-reaching consequences. This article explains the legal consequences of mobbing for both sides.

The most important information on the topic:

• Mobbing at the workplace describes the targeted and repeated hostility, harassment or discrimination by colleagues or superiors. Such behaviour can have serious consequences under employment law, such as a written warning, a transfer or even (immediate) dismissal.
• Termination: Those affected can terminate the employment relationship at any time, subject to the statutory notice period. In particularly serious cases of mobbing, termination without notice is also possible.
• Transfer request: A request for transfer due to mobbing is usually accepted by the employer, with the specific circumstances of the individual case playing an important role.
• Waiting period for unemployment benefit: If you resign, you may face a waiting period for unemployment benefit. A doctor’s note can help to prevent this waiting period.
• Employer’s duty of care: The employer has a duty of care towards its employees. If the employer fails to fulfil this duty and does not take appropriate action against mobbing, employees can claim damages and compensation for pain and suffering.
• Sick leave: Mobbing can cause health problems. In such cases, those affected have the option of taking sick leave.

What is mobbing?

The Federal Labour Court defines mobbing as systematic hostility, harassment or discrimination by colleagues or superiors. For behaviour to be considered mobbing, it must reach a certain intensity.

Individual incidents, such as being excluded from lunch with colleagues just once, are not enough to constitute mobbing.

Typical examples of mobbing:

• Constant ignoring: The employee concerned is continually ignored and excluded.
• Repeated malicious pranks: Malicious pranks that harm the person concerned are repeatedly played at the workplace.
• Deliberate spreading of rumours: Rumours are deliberately spread to damage the victim’s reputation.
• Constant insults and harassment: The victim is constantly insulted, harassed or subjected to degrading treatment.
• Systematic obstruction of work: Work materials are deliberately hidden or other measures are taken to make the victim’s work more difficult.
• Cyberbullying: Disparaging images or messages are distributed in professionally used social networks.

Whether a particular behaviour can actually be classified as mobbing must always be examined in the context of the specific circumstances of the individual case. In serious cases, the person being mobbed bears the burden of proof and must present concrete circumstances that prove mobbing.

Mobbing at the workplace: Mobbing victims have these rights!

Mobbing at the workplace describes the targeted and repeated hostility, harassment or discrimination by colleagues or superiors. Such behaviour can have serious consequences under employment law, such as a written warning, a transfer or even (immediate) dismissal.

Affected employees have several options for action:

• Termination: Victims of mobbing can terminate their employment relationship at any time by observing the statutory notice period. In particularly serious cases of mobbing, termination without notice is also possible.
• Transfer request: A request for a transfer due to mobbing is usually accepted by the employer, whereby the specific circumstances of the individual case play an important role.
• Waiting period for unemployment benefit: If you resign, there is a risk of a waiting period for unemployment benefit. A doctor’s note can help to avoid this waiting period.
• Employer’s duty of care: The employer has a duty of care towards their employees. If they fail to fulfil this duty and do not take appropriate action against mobbing, employees can claim compensation and damages for pain and suffering.
• Sick leave: Mobbing can cause health problems. In such cases, those affected have the option of taking sick leave.

Mobbing at work and the consequences for the bullies

Employees who bully their colleagues face serious consequences under employment law:

1. Written warning: The employer can initially issue a written warning to alert the employee to their inappropriate behaviour.
2. Transfer: If the employee does not change their behaviour despite a written warning, the employer can consider transferring them to a different position.
3. Dismissal: In particularly serious cases, the employer can issue a dismissal for conduct-related reasons or with immediate effect after an unsuccessful written warning and transfer.

Before taking such measures, the employer must ensure that mobbing is actually taking place. Although the burden of proof generally lies with the person affected, the employer is obliged to follow up any indications or complaints and to thoroughly investigate the mobbing allegations. This includes talking to colleagues involved and uninvolved in order to clarify the facts of the matter.

First step: written warning

Mobbing in the workplace constitutes a serious breach of the duty of loyalty under the employment contract and can therefore justify an written warning. Such behaviour severely disturbs the peace at work and negatively affects operational processes. Employers therefore often resort to written warnings as a first step.

Whether a written warning is issued depends on the severity of the misconduct. It is often only possible to terminate the contract after a written warning has been issued, as the employee must first be made aware of his inappropriate behaviour.

The written warning must describe the specific misconduct in detail. In cases where a written warning is a prerequisite for termination, the reasons for the written warning and the termination must essentially correspond. Otherwise, a new written warning may be necessary before termination is justified.

Transfer as a last resort before termination

Conflicts at the workplace can often be resolved by separating the employees involved. In cases of mobbing, it may be necessary to transfer the colleague responsible. In situations where mobbing occurs, the employer could even be obliged to intervene by transferring the employee. A transfer is not a purely disciplinary measure and is therefore usually only considered after a prior written warning.

If a transfer involves a permanent change of location, the employee concerned must be heard beforehand. No hearing is required for a temporary assignment of three months or less, as this is referred to as a secondment rather than a transfer.

Termination for misconduct due to mobbing

Misconduct in the workplace, including mobbing, can result in dismissal for misconduct due to mobbing. This results in the employment relationship ending at the end of the regular notice period. In order to resolve conflicts quickly, the employee is often released from work until the end of this period. This means that the employee no longer has to attend work, but continues to receive their salary.

In most cases, a termination of this kind is only possible after a prior written warning. The prerequisite is the assumption that the disruptive behaviour will continue in the future. The employer may not only refer to past misconduct, but must also make a prognosis for the future. The written warning serves as a warning and control instrument: if the behaviour is repeated after the written warning, this underlines the negative prognosis for the future and the employer can issue a dismissal for behavioural reasons.

In particularly serious cases of breach of duty, the employer can also terminate the contract without a prior written warning, especially if the further employment of the employee has become unreasonable.

Immediate dismissal due to mobbing

Mobbing at the workplace can have serious effects on mental and physical health and violate the personal rights of the person affected. As the severity of mobbing increases, the relationship of trust between the employer and the mobber also deteriorates.

If the harasser continues to act inappropriately despite being aware of the consequences, it may be unreasonable to expect the employer to continue to employ the employee until the end of the notice period. In such cases, the employer can issue an extraordinary dismissal without notice. However, this measure is rarely used in practice.

Severance pay for mobbing-related dismissals

Is there a right to a severance payment after a mobbing-related dismissal? There is no general answer to this question, as it depends heavily on the individual circumstances of each case. Important factors include:

• Weight of evidence: If the employer has credible witnesses or written evidence to support the bullying allegations, they are likely to fare well in court. In such cases, the labour court is likely to uphold the dismissal and the employee will have to leave the company.
• Severity of the mobbing: If the mobbing incidents are severe and well documented, the employer is often justified in terminating the employee. Such circumstances reduce the likelihood of the employee receiving severance pay.
• Previous warnings: If the employee has already been given several warnings before being dismissed, this is a strong argument for the employer. Repeated written warnings show that the employee has not changed his or her behaviour despite warnings.

It must be possible to prove allegations of mobbing

• Well-documented allegations: If the employer can call on numerous witnesses to confirm serious acts of mobbing, the employer’s prospects in court are usually positive. In these cases, the labour court often confirms the dismissal, and the employee leaves the company without severance pay.
• Hard to prove accusations: If the accusations are hard to prove or only concern minor incidents, the employer could face difficulties in a court case. In this case, there is a possibility that the court will declare the dismissal invalid, and the employee would have to be rehired and paid.

To avoid long and costly court proceedings, employers often offer a settlement in such cases. This settlement usually involves the dismissed employee receiving severance pay in return for withdrawing their claim. This results in an amicable solution that is acceptable to both sides.