Step 1: Initiating internal investigations

If a case of bullying is suspected, an objective internal investigation into the allegations is strongly recommended. It is particularly important that internal investigations are initiated as soon as a case becomes known.

In cases of suspected bullying, the procedure should be as follows:

• Create a strategy for conducting the internal investigation
  • Analyze the specific allegations to determine whether there is a sufficient initial suspicion to justify the initiation of an internal investigation.
  • Define the subject of the investigation, the timetable and the order of the specfic steps to clarify the facts and identify relevant evidence (e.g., witnesses and written evidence such as emails, messages or witness statements).
  • Decide which individuals should carry out the internal investigation. It can be carried out by individuals within the company (e.g. the HR department) or by external experts (e.g., law firms).
  • Based on this (initial) analysis, decide on any necessary immediate measures (e.g., leave of absence) and document the decision precisely. Observe any participation rights of employee representatives.

When conducting the internal investigation, ensure that the confidentiality of all involved individuals is observed, particularly that of the person who reported the suspected case and the accused person. Only those individuals directly involved in the investigation should have access to information relating to the specific incident.

• Analyze written evidence, conduct interviews and document findings
  • Written evidence (e-mails, documents, messages, calendar entries) should be thoroughly analyzed and all involved individuals should be interviewed. In particular in cases of bullying, it is important to conduct the interviews sensitively and be well-prepared.
  • Data protection regulations must always be observed (especially when accessing evidence). For example, it must be ensured that there is no unauthorized access to (private) messages.
  • The results of witness interviews should be well-documented (e.g., in the form of minutes).
• Create a final report
  • Based on the findings (from written documents and witness interviews), an assessment should be made as to whether there has been a breach of statutory or internal rules. For this purpose, (contradictory) evidence must be evaluated and weighed against each other. If necessary, additional witness interviews may also be required.
  • Depending on the findings obtained, an assessment must be made as to which measures under employment law are necessary and appropriate. Recommendations for further action should be included in the final report.
  • The final report should be communicated to the responsible management personnel, who will decide on the next steps (e.g., taking action under employment law or informing the relevant authorities).

Step 2: Taking action under employment law 

Based on the results of the internal investigation, various measures may be required under employment law. The specific measures that may be taken depend on the severity of the misconduct and can range from a written warning to a relocation, a reduction in pay (e.g., bonuses) or immediate termination. The employment law measures taken must always be proportionate to the severity of the misconduct.

If the employment law measures constitute a "disciplinary measure" (e.g., reduction in pay), this is only enforceable if it is regulated in a works council agreement (or collective bargaining agreement) and the works council agrees to this individual measure.

The results of the internal investigation should also be used as an opportunity to implement preventive measures within the company (e.g., as training, the introduction of control systems and the implementation of policies and regulations), to avoid future misconduct by other employees.

Legal consequences in the event of inadequate investigation of suspected cases

If suspected cases of bullying are not investigated in accordance with the law or if adequate defensive measures are not taken immediately, employers may face the following far-reaching consequences:

• Employers may be liable for damages due to a breach of the duty of care and the Equal Treatment Act (“Gleichbehandlungsgesetz”, GlBG).
• Employers can face high penalties for data protection violations and lawsuits of the works council.
• If the health or ethics of employees are endangered, employees can refuse to work until a lawful situation is restored.
• If an internal investigation is not carried out promptly, subsequent employment law measures, such as ordinary terminations or immediate terminations due to misconduct, may be invalid.
• In addition, the lack of timely and adequate measures may entitle employees to immediately terminate their employment.

Conclusion

Companies should have exact action plans ready as soon as they become aware of suspected cases of bullying. Thorough internal investigation, collection of evidence, objective analysis of that evidence, observing confidentiality, and consistent implementation of appropriate employment law measures can protect employers from significant risks. Employers who prioritize swiftly addressing instances of bullying foster a positive and productive working environment in which all employees feel safe and respected.

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German version