Why I as a specialist lawyer for labor law do not recommend the filing of a mobbing lawsuit as a rule.
The impulse is understandable. After an experienced mobbing the skin is only thin. The situation is set to change. One would like to get out of the victim role and become active. I'll pay him back! I go to the lawyer, I sue! Stop the psychological injuries! I recommend in such a situation, however, also the pause and gaining distance. Does a mobbing complaint make sense? This question wants to be discussed calmly. Seeing a lawyer can be a good step, but the next one – going to court – needs to be well thought out. In addition here a outline, which would come on you, if you would like to start a Mobbingklage. It can become a marathon, this much is said. And whether there is a light in the tunnel at the end ..
Behavior that has the purpose or effect of violating the dignity of the person concerned and an environment characterized by intimidation, hostility and humiliation
is created.
Mobbing definition of the Federal Labor Court
What is mobbing?
- You will be humiliated.
- You are ostracized and isolated.
- They are deprived of their previous tasks.
- You are assigned low-value work tasks.
- Your performance is constantly and groundlessly belittled.
- They are made bad also before the colleagues.
- Making you feel insecure for trivial reasons.
- False facts are spread about them.
The mobbing is carried out in the company both on the part of superiors, as well as colleagues.
Consequences of mobbing
- You suffer increasingly from stress, nervousness, sleeplessness, self-doubt.
Mobbing happens in particular by:
- Exclusion in the company
- Cutting off communication channels (e-mail correspondence and circulars)
- Making social contacts impossible (Christmas party, birthday parties)
- Damage to personal reputation
- Ridiculing work performance in front of others
- Assignment of useless and unsolvable tasks
- Constantly shouting at or interrupting
- Isolation
- no more involvement in private conversations
- When no one says hello and everything is silent
- Spreading untruths and rumors
- deliberate denunciation to superiors.
In the following, I speak of female clients/employees, because they are more willing to bring about a change in the intolerable situation.
Often these come to me with the desire that the employer be punished and also that co-workers be protected from the employer's harmful conduct.
Difficulties of a Mobbingklage
Claims for bullying are claims for damages. The plaintiff must prove all the circumstances for the claim for damages.
Often there is a lack of written documents that could support the allegations of the plaintiff. Such evidence is deliberately avoided on the part of the mobbing party.
Mostly mobbing on the part of the superior without witnesses – in private – takes place. The plaintiff is not a witness, even if the facts are clear to her. It is a party to the proceedings.
As far as mobbing takes place in the presence of witnesses/colleagues, they are often not willing to stand up against the employer. They are put under pressure by the employer in the course of the proceedings and finally have no more courage to stand by them.
The supervisor is named and called as a witness by the employer, unless the supervisor is a manager and therefore a party to the case.
If it comes to the hearing of witnesses, there are usually statements for and against the presentation of the plaintiff. The following principle applies here:
If the plaintiff cannot prove the allegations, but there is testimony for and against the allegations, the allegations are considered unproven and the case is dismissed accordingly.
Exception
The court finds the testimony of the defendant's witnesses to be untrustworthy and the testimony of work colleagues to be credible.
Bullying diary
The court helps the mobbing victim under certain conditions:
Keeping a bullying diary for a period of 6 months with a day-by-day account of the incidents.
In my experience, a listing after the fact is usually worthless, since it already lacks the necessary temporal determination. This is necessary because the employer must have the opportunity to comment on the allegations and raise objections, such as: the supervisor was on a business trip on the alleged day. It cannot have come therefore to the alleged happening.
If the diary is carefully kept, the court will hear the plaintiff in person and consider whether the allegations are coherent and whether the plaintiff is credible in her presentation.
Examining witnesses
Then the court hears the plaintiff's witnesses, if any, the supervisor and the defendant's witnesses. If the defendant's witnesses give a coherent and credible account, it will be difficult for the plaintiff.
This brief description already shows the problems the plaintiff faces in successfully conducting such proceedings, even if the matter is clear to the plaintiff. Finally, she is permanently damaged by the mobbing and becomes ill.
Losing in the legal process weighs twice as heavily for the victim.
As witnesses for example work colleagues, customers or work council members can appear. It reads so easily, but anyone who has been affected knows how difficult it is to find people who will stand by you in a bullying situation. That's the tricky thing about bullying, that many people are involved in it and the bullied person is alone in the open. And if there should be such a witness, then its statements are not sufficient in itself. They would have to build on notes. But which nice colleague keeps a diary in which he writes down conspicuous situations of a concerned colleague to him? Especially since the testifying colleagues themselves must fear that the employer will punish them for their "squealing".
Insulting e-mails, messenger messages, letters or photos of notices in the company can also serve as evidence. But usually the mobbing happens subliminally and without tangible evidence. It's mental injuries that can't be proven medically. These violations make the victim vulnerable and also make it difficult to persevere in a protracted process. And that such a lawsuit will drag on is something the plaintiff must assume. He cannot expect a quick relief from his torment. In the head the thought of a Mobbingklage may help and as liberating blow after years of the Drangsalierung help. In reality, experience shows that things will unfortunately turn out differently.
About the sense of a mobbing complaint
Long duration of proceedings
In the first instance, before the labor court, the procedure will usually take a year or more due to the complexity (conciliation proceedings, chamber hearing, taking of evidence).
If the employer is defeated, it will usually go to the second instance, to the regional labor court. In the second instance, further factual and legal arguments can be made to the full extent, so that the second instance will also take many months, up to a year.
If the employer is defeated, he will try to appeal to the Federal Labor Court. In total, the duration of the proceedings for the clarification of the legal dispute is two to four years. D.h. concretely, important life time is taken from the complainant. In addition, the time of the mobbing. Often the complainants are women in their 50s. When things go badly, they lose valuable time to even find employment again.
Exception: Guterichterverfahren!
If both sides agree, proceedings can be conducted before a court of arbitration. In this case, however, there would be no admission of bullying on the part of the employer. This is something I have not yet experienced in my long career. If anything, in order to avoid a protracted legal dispute, an agreement will be reached on a basis that cannot satisfy the plaintiff.
Relentless harshness of the process
Mobbing lawsuits are conducted with unrelenting severity on the employer side. This is the most serious accusation imaginable in working life. There one can think about the sense of a Mobbingklage. The plaintiff is usually bad-mouthed, denigrated, insulted and accused of complete failure. The lawyer of the employer is usually "not squeamish" in the formulations, a merciless fight is waged against the plaintiff.
The plaintiff, already damaged and insecure by the bullying incident, is not capable of going through such a procedure. She feels deeply hurt and demoralized by the opposing lawyer's presentation. Again and again she reads the disparaging remarks of the opposing lawyer.
The plaintiff has no trial experience and does not have the necessary resilience. The impotence leads to an aggravation and consolidation of the disease, which usually accompanies the mobbing.
Costs of the proceedings
Such a procedure can be led only with occurrence of a legal protection insurance, otherwise also still another heavy financial damage threatens. The sense of a bullying complaint is in the room. Often, when the victim of mobbing goes to see a lawyer, he is told by the lawyer that the conditions for filing a mobbing complaint are not met, because there is already a lack of a carefully kept mobbing diary.
She must therefore first return to the company, keep a bullying diary for six months and only then initiate legal proceedings.
Here, too, the approach to a positive development is aborted and the victim is even advised to allow himself to be tortured for another six months.
Does a bullying lawsuit make sense at all?
Conclusion
The mobbing victim/client wants a change in the intolerable situation at work. As a first step in this direction, she seeks the lawyer and is dragged into years of proceedings or sent back to the sickening work environment.
In the end, it is sicker and less stable than before seeing the lawyer, often permanently damaged and unable to work.
This applies even if the proceedings have been successful and the employer has been convicted.
The positive impulse for change is slowed down by the harshness and duration of the proceedings and entails incalculable health and financial risks.
It is therefore necessary to clarify at the outset the meaning of a complaint of harassment. It may make more sense for a victim of bullying to seek a new career perspective. My way out of this dilemma I explain here.