You can sue your attorney for negligence

Suing employers - this is how damages and compensation for pain and suffering are possible

In this article you will find out under what circumstances you can sue your employer and what claims you are entitled to in the event of bullying, harassment, unfair termination or the like. In addition, the article provides information on the procedure and process of the lawsuit as well as the deadlines and costs of filing a lawsuit.


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1. What can you sue the employer for?

You can sue your employer for unjustified dismissal and for mental illnesses such as depression or burnout caused by bullying, defamation or discrimination. In these cases, you can even expect damages or compensation for pain and suffering. Regardless of whether the employer is the bully himself or he only knew about the bullying, you have various claims against him, which can be asserted in court if necessary:


a)Right to the implementation of suitable measuresto stop bullying etc. For example, a warning or warning, but also the transfer of the bully to another department or even a termination [cf. 12 para. 3 AGG].

b)Entitlement to retention of work. If you are being bullied really badly, for your protection you can refuse to do your job and still receive wages. This applies in those cases in which the client does not carry out the above measures. But be careful: If you do this wrongly, you are threatened with termination without notice [cf. 14 AGG analogous; § 273 BGB].

c) Claim for damages, for breach of duty of care. Of course, you must have suffered verifiable damage for a replacement [cf. §§ 241 Abs. 2, 278, 280 BGB; § 253 Abs. 2 BGB i. V. m. §§ 280 Abs. 1, 278 BGB].


Claims against the employer if he is also the bully:

d) Right to omission. A defamation suit helps against defamatory or insulting statements [cf. §§ 1004 i. V. m. 823 BGB].

e)Criminal complaint or criminal complaint are possible if the behavior falls under criminal law. This is the case, for example, with crimes of bodily harm and sexual assault [cf. §§ 185 ff. StGB; §§ 223 ff. StGB; §§ 177, 178 StGB].


2. When can I sue my employer for poor working conditions?

Bad working conditions such as bullying, discrimination or sexual harassment justify action against the employer. However, before you consider a lawsuit, you should first meticulously record in a notebook when the boss approached you. To do this, note down the place, date, time, wording or sequence of events and the context. It is also always helpful to be able to name witnesses. Stressful e-mails, documents or faxes can also prove your situation.

Too much overtime or too little salary (from an objective point of view) justify a lawsuit against the boss. After an accident at work, you can only sue your employer under special circumstances. To do this, the client must either act with intent - slap you in the face, for example - or grossly negligently ignore safety regulations. The conditions are different if the accident happens on the way to work (so-called commuting accidents) - here the employer is also liable for negligence.


3. When can I sue my employer for dismissal?

If you have received a termination that you do not want to accept, a dismissal protection suit will help. Attention: Such a lawsuit must be filed within three weeks of the notice of termination being served! It is promising, for example, if you enjoy special protection against dismissal during parental leave or if you were given notice while on sick leave. But employees also have dismissal protection in other cases - at least in companies with more than ten employees. As a rule, a warning must therefore first be issued before an ordinary or timely termination can be issued. For each type of termination, however, different conditions apply to its effectiveness.

In any case, you are entitled to a job reference after termination of the employment relationship. If the AG refuses to issue this to you or only gives you an inadequate certificate, it is possible to enforce this claim by filing a lawsuit in court.

You can also sue your employer for continued employment or reinstatement. Whether this makes sense after such a breach of trust - which a lawsuit entails - is something that everyone has to decide individually.


4. When can I sue my employer for damages or compensation for pain and suffering?

In order to be entitled to compensation, you must have suffered damage that can be quantified. Often it is about medical expenses, loss of earnings due to unjustified dismissal or, in the case of sick leave due to depression, an accident at work or the like, the difference between sick pay and salary. You will only receive compensation for pain and suffering if you can prove your pain. In the event of bullying, defamation or harassment, you may then have a claim against the employer and the bully. In addition, the AG is liable for its own misconduct as well as for the bullying of its employees, which it has tolerated.



5. Process of a lawsuit against the employer

The respective labor court in your area is responsible for the lawsuit against the employer. There, after your application, a settlement appointment will first be convened, which aims at an out-of-court settlement through a settlement. If this does not succeed, there is a second appointment with a labor judge and two honorary assessors who represent the employee and employer side. Even if an agreement is still possible here, there is usually a verdict in the end. This can be, for example, a declaration of cease and desist that has been tried and tested, which asks the employer to refrain from certain actions (e.g. degrading speeches). If he violates this, a fine of up to 25,000 euros awaits him (the money, like other fines and fines, does not go to the employee, but to the state).

The employer can appeal this judgment to the regional labor court and possibly reach an agreement with you in this step. If a judgment is finally passed here as well, an appeal is only permissible if it is named as a possible legal remedy in the judgment. The then competent Federal Labor Court then only checks the judgments of the previous instances for legal errors and not in terms of content.

The labor courts are careful not to unnecessarily prolong proceedings and are really pushing for an agreement between the employee and the employer. However, if all three of the above-mentioned instances are fully processed, the legal dispute can drag on for several years and thus also cause high costs.


6. Costs if you sue your employer

If you want to sue your employer, you have to expect some costs. On the one hand, the lawyer is paid by both parties themselves in the first instance before the local labor court. In other proceedings and if you go to the regional labor court in the second instance, the unsuccessful side has to bear all costs. If you can come to an agreement after filing a complaint in the settlement date, you will not incur any court costs. However, as soon as a court has to pronounce a judgment, fees are incurred that are based on the amount in dispute.


Amount in dispute

Court fee

Up to 300 euros

25 euros

Up to 5,000 euros

121 euros

Up to 25,000 euros

311 euros

Up to 125,000 euros

956 euros

Up to 470,000 euros

2,806 euros

Over 500,000 euros

Each started 50,000 euros plus 150 euros

The exact amount depends on how many fee items were incurred during the process. In the event of a termination, for example, the gross salary for the last three months is calculated as the amount in dispute. As a rule, double the court fee is always charged, which is only due after the judgment of the respective instance.

If you have legal protection insurance, you don't have to worry about these costs. A lawsuit is also possible without legal protection, but in this case you always have to keep an eye on profitability - i.e. the question of whether the legal and court costs are worthwhile compared to the possible profit.


7. You must meet these deadlines if you sue your employer

In the event of a lawsuit due to termination, you must respond within three weeks of delivery, as this is agreed in the protection against dismissal. You usually have longer time for other grounds of action. Here, however, you should observe the preclusive periods specified in the employment or collective agreement. According to the judgment of the Federal Labor Court in 2007 (Az. 8 AZR 709/06), however, this period does not begin until the last act of bullying, so that harassment can also be punished for years.


8. Step by step: Before you sue your employer

Before filing a lawsuit, it may be advisable to first choose a milder route and try to solve the problem in-house. This right of appeal is even anchored in Section 13 (1) of the General Equal Treatment Act (AGG). The first point of contact in such a case is the company's HR department. Your problem will also be taken into account by the works council. It is possible that further complaints have already been received there, so that action can be taken against the person thanks to them. If you do complain about the boss at these points, it is best to be as specific as possible and, best of all, bring the above notes and evidence of his wrongdoing with you.


9. Tip: free initial assessment in labor law

Are you having problems with your (former) boss and considering suing him? You can sue your employer in the event of unreasonable working conditions such as bullying or sexual harassment, after an unfair dismissal or an accident at work. You then have, inter alia. Claims for improvement measures, damages or even compensation for pain and suffering. An employment law attorney will take care of your problem and work with you to find the best possible solution for you.


► Do you need expert advice? advocado will find the right lawyer for you for employment law from a network of over 500 partner lawyers. They will contact you within 2 hours for a free initial assessment of your options for action and chances of success.


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