Forfeiture of an entitlement to damages for pain and suffering in cases of workplace bullying

BAG, judgment dated 11.12.2014 - 8 AZR 838/13

The Federal Labour Court has decided that claims to damages for pain and suffering based on workplace bullying can be forfeited. Nevertheless, mere “waiting” or failure to act by the claimant is not sufficient to trigger forfeiture.

In the case to be decided, the claimant was claiming damages for pain and suffering against his former employer, based on damage to his health as well as violation of general personal rights. He stated that he had repeatedly been isolated, degraded and victimised in the period between 2006 and 2008. The last incident had been in February 2008. The claimant was subsequently almost continuously unfit for work, among other things as a result of depression. However, his legal action was not received by the Court until the end of December 2010, and thus almost three years after the last incident. Based on this long period of failure to act, the State Labour Court Nuremberg assumed that possible claims of the claimant to damages for pain and suffering had been forfeited.

Mere “waiting” cannot result in forfeiture of claims based on workplace bullying

The Federal Labour Court set aside the decision of the State Labour Court Nuremberg and referred the matter back to the State Labour Court. In the opinion of the Federal Labour Court, forfeiture of a claim can only be affirmed in very special circumstances. The fact that the alleged victim had refrained from filing legal action for a long time can only constitute an element of circumstance given an obligation of prompt assertion based on additional special circumstances. In the opinion of the Federal Labour Court, anything else would result in circumventing of the statutory limitation of actions.

The statutory limitation of actions must not be circumvented

The State Labour Court Nuremberg is now called on to check whether the claimant has actually become a victim of workplace bullying.

Summary

Claims based on workplace bullying are subject to the legal instrument of forfeiture. A right is forfeited if a long period has passed since the possibility of asserting it (element of time) and if special circumstances occur that cause the delayed assertion to appear as violation of good faith (element of circumstance). In the opinion of the BAG, failure to act over an extended period of time can only constitute an element of circumstance if the alleged victim of workplace bullying is under an obligation to make prompt assertion. This is fundamentally not the case.