Damages and Liability
In 2007, the Eighth Senate dealt with the liability consequences of so-called bullying in two decisions. In his decision of May 16, 2007 ( 8 AZR 709/06 ) he emphasized that bullying is not a legal term and not a basis for a claim. The legal peculiarity of the actual phenomenon referred to as bullying lies in the fact that the combination of several individual acts and not individual, definable acts lead to a violation of the employee’s personal rights or health.
Individual partial acts of the overall act that can be viewed as bullying can be legally “neutral” when viewed individually. The system that summarizes various individual actions that is typical of bullying may be missing if an employee is criticized or judged poorly by different superiors who follow one another but do not work together. The required system may also be missing if there are long gaps between the individual sub-acts. The question of whether overall behavior can be qualified as a uniform violation of personal rights and whether individual actions, taken as a whole, have a character that violates personal rights, is subject to the factual assessment, which can only be verified to a limited extent under appeal law.
The employee bears the burden of proof for the breach of duty and causality. In addition to the employer’s liability for its own actions, liability for the conduct of vicarious agents in accordance with Section 278 of the German Civil Code (BGB) also comes into consideration. In the judgment, the Eighth Senate further stated that a contractually agreed exclusion period also applies in principle to claims for damages and compensation due to violations of general personal rights and thus also to claims based on bullying. In bullying cases, however, the exclusion period usually only begins with the most recent bullying act due to the systematic act of violation, which is made up of several partial acts. In 2007 ( 8 AZR 593/06 ) it was decided that the employer is liable according to Section 278 of the German Civil Code (BGB) for damages that one of his employees suffers as a result of his superior culpably violating his rights. The employee can then be contacted by the employer in accordance with § 253 Abs. 2 BGB demand fair compensation in money.
On the other hand, the Senate rejected the employee’s claim to dismiss the superior. Termination does not generally comply with the principle of proportionality and is generally unreasonable for the employer. Something different may apply if, in exceptional cases, the dismissal of the superior, even without prior warning, represents the only measure that complies with the principle of proportionality and the employer should have taken it if he had dutifully exercised his discretion. As a rule, the employee also has no right to the employer offering him a job that is appropriate to his performance and position, but has yet to be created, and where there is no obligation to follow professional instructions from his superior. The duty of care obliges the employer to protect the employee from harassment by his superior. This obligation finds its limits in that the employer would have to take measures that are impossible or unreasonable for him. The employer is not obliged to create a prominent position for the employee.
According to the case law of the Eighth Senate, the employee’s claim for damages due to the employer’s negligence in accordance with § 628 Abs. 2 BGB also include appropriate compensation to compensate for the loss of existing protection in accordance with Sections 9 and 10 KSchG. Continuing this jurisprudence, the Eighth Senate decided in its judgment of July 26, 2007 ( 8 AZR 796/06 ) that arrears in wages are in themselves an important reason for dismissing the employee without notice in accordance with Section 626 Para. 1 BGB can be. A claim for compensation due to the “loss of existing protection” according to Section 628 Para. 2 BGB presupposes, on the one hand, that the Dismissal Protection Act applies. Zum anderen ist erforderlich, dass der Arbeitgeber im Zeitpunkt der Arbeit nehmerkündigung das Arbeitsverhältnis nicht selbst hätte kündigen können, weil ein Kündigungsgrund i.S.v. § 1 Abs. 2 KSchG was not available. If insolvency proceedings are opened later, the employee’s grandfathering does not expire. Section 113 InsO does not represent an independent reason for termination in insolvency proceedings.