Awareness of workplace harassment as an issue in Germany has significantly increased over the past couple of years. In many cases of sexual harassment in particular, employers keen to be seen to take a hard line will often discipline or terminate the harassing employee without notice. In this article, we investigate a number of court decisions regarding workplace harassment to provide an overview of how far societal changes of attitude towards that sort of conduct have translated into more stringent rulings in the courtroom. As it turns out, the reality is not what one might expect. Instead,  the Labour Courts in Germany have tended to adopt a very balanced approach and, as is their responsibility, to consider all the relevant circumstances surrounding the incident. That can sometimes lead to outcomes which disappoint employers and victims.

That is because “taking all harassment allegations seriously” does not mean “all harassment allegations are equally serious”. That is clearly not the case – German law shares with all other jurisdictions basing their discrimination law upon the Equal Treatment Directive a definition of harassment which is based on the effect of the conduct complained of, not just the intention behind it. It is therefore possible in law to harass entirely inadvertently, or even – at least from the offender’s perspective – with positively good intention. The tendency we observe is that most German Labour Courts conduct a very fact-specific approach to dig into the relevant detailed issues of intention, experience, training, the objective gravity of the incident, and so on. Some examples:

In 2021, the Regional Labour Court of Rhineland-Palatinate (LAG Rheinland-Pfalz, 25.02.2021 – 2 Sa 207/20) addressed the dismissal of a long-term employee who was terminated without notice by the employer after sexually harassing a colleague. Due to his 24-year tenure, the court deemed a warning or, at most, an ordinary termination with notice pay as sufficient measures to deter further misconduct. In a different matter, the Regional Labour Court Cologne (LAG Köln, 06.06.2019 – 4 Sa 18/19) had to decide if an employee’s racist remarks warranted a termination without notice. The employee, with over 13 years’ service, made monkey noises at a fellow works council member during a meeting. Since he had a prior warning for verbal abuse and had nonetheless gone on to do it again, there seemed little realistic hope that he would stop that sort of conduct, so justifying a termination without notice. In a separate case again, the Regional Labour Court Düsseldorf (LAG Düsseldorf, 28.04. 2021 – 4 Sa 580/20) ruled that the termination without notice of an employee who insulted a colleague based on his sexual orientation was unwarranted. Despite his deplorable remarks referencing the mistreatment of homosexuals during the Nazi regime, the Court deemed a warning letter sufficient to deter future incidents, considering the employee’s 35-year tenure without prior discriminatory remarks.

This shows that in court proceedings of this sort the question of whether an individual remark or act is considered as harassment often is less decisive in leading to a lawful dismissal than determining the wider context, including  events prior to this incident. The decisions also suggest that one-time misconduct is only sufficient to justify dismissal in more serious  cases, but that mitigating matters such as length of service will still be relevant. In cases of less extreme statements, it is therefore very important for employers to develop a clear stance on discrimination and harassment and to orient themselves accordingly. Even less blatant misconduct should be warned and rules on appropriate behaviour should be clearly formulated and communicated to the workforce. Policies and procedures perform an important role in managing the expectations of both the victim and the perpetrator and so should be drafted to reflect the wide range of possible outcomes to a harassment complaint. If the employer has tied its credibility in this respect to statements about all allegations being taken seriously or adopting a zero-tolerance approach, it needs to make clear that this means that allegations will be promptly and reasonably investigated and that any finding of culpability will lead to a proportionate sanction, up to and including a dismissal.  It does, however,  not mean that all harassers must or will be dismissed or (if the harassment is found truly inadvertent) even formally disciplined. Equally, the reader of the policy must not be left with the impression that there is no real risk of dismissal for a first offence or that a decision not to dismiss means that the complainant has somehow not been believed.  

We recommend that the following should be adhered to:

• In instances where harassment cases may not warrant immediate termination, subjecting the harasser to specialised training or coaching courses to prevent further discriminatory behavior is often an effective way forward and warnings should be used to make a clear stance.
• Furthermore, companies can communicate their general approach to addressing harassment by revising their policies, particularly the code of conduct. This enables employers to demonstrate, not only to their employees but also to the broader community, the seriousness with which they address workplace harassment. This can also be important in court proceedings to demonstrate the credibility of the case on the employer side.
• Not acting is not an option. Although courts decide on case-by-case basis which consequences are adequate for an incident of workplace harassment and employers have the risk of “going to far” with their consequences, not taking any action can cause high fines for ignoring harassment cases if they have been brought to the attention of the responsible management. If as employer you find that harassment has taken place, even inadvertently, or that the conduct complained of did not amount to harassment at all, then in either case good practice and compliance with the General Equal Treatment Act and the Whistleblower Protection Act will also include reporting back to the complainant and proving an outline explanation of what you decided and why.