Mobbing at work

(guarantor position of an employer), BGH, 20.10.2011 - 4 StR 71/11

A. Facts of the case

A worked for the road construction department in Hamburg and was foreman of the
group S, K and B belonged to. D also worked for the same department but was
assigned to another group.
In February 2006 S, K and B dragged D into an empty church chapel during lunch
break and hit him multiple times with a wooden stick. D suffered a broken rib and was
unable to move. A did not care that D did not return after the lunch break.
2 years later S, K and B lured D to a nearby car during work and hit his onto the hood
of the care. A noticed it but did not intervene. A few months later S, K and B hit D
from behind while he was loading a car during work. They were angry that D had
signed up for professional development. Again, A knew what was happening but did
nothing to stop them.
There was not enough proof that A took an active part in any instances.
So, the question now is whether A is guilty of assault by omission when he did not
intervene during the abuse of D by S, K and B.
B. What is omission?
 failure to act, when there is a duty to act
 Regulated in section §13 StGB

For the case to be to be “prima facie” all elements of §13 must be met.
 if the evidence presented is sufficient for a conviction
§ 13 StGB – omission
A guilty of assault by omission, §§ 223 I, 13 I StGB

I’m sure you all know how to structure § 13, but I will give you a short review.

I. facts
1. actus reus
a) result
b) omission or commission (failure to act)
 A did not stop S B and K
c) hypothetical causation
 the action can not be added without ceasing the result with virtual certainty
d) proximate cause
e) guarantor position
 the main focus of this case, I will explain this in depth
2. mens rea
 A did not intervene intentionally
II. unlawfulness and culpability
III. Conclusion
C. Guarantor

There are two types of a guarantor  the protector guar. and surveillance guar.
The protector guarantor has a duty to protect a legally protected interest. This duty
can be a result of law, examples are spouses or parents; or by voluntary assumption
like doctors or lifeguards.
There is a possibility of such a protective duty between employers and employees
resulting from §618 BGB. However, A only is foreman and not even to the group D
belongs to. So, he has no position as a protector guarantor.

The second type is called “surveillance guarantor”.

The surveillance guarantor has an obligation to protect the general public from a
source of risk. This source can also be a human person, meaning that a surveillance
guarantor can be responsible for someone else’s actions. This can conflict the
principal of personal responsibility, whereas one is only responsible for his own
actions. This is not problematic if the other person is not fully responsible. Parents
are responsible for their children’s actions, the personal of a psychiatry for their
patients. However, this generally does not apply if the other person is fully
responsible. Parents are not responsible for their children’s actions once they are of
age, spouses usually not for their partner’s actions. So, in conclusion, affirming a
position as surveillance guarantor requires a certain relationship of authority or
supervision.
Keeping that in mind, should superiors be responsible for his co- workers? The
prevailing opinion affirms such a responsibility, but only if the actions by the co-
workers are business-related. The BGH further says those actions must have an
inner connection to the operation activities and can not be just on occasion during
work.

If we apply all this to our case we see, that A had authority over S K and B. However,
the abusive actions were not really business related. They rather abused him on
occasion and could have done the same outside of work.
So, it should be a negative for the surveillance guarantor as well.

But, is mobbing in general considered business related?

The general attorney says yes. Mobbing is a general risk of every company with
more than one person and should therefore be business related.

The BGH on the other hand decided against it. It argued that because it is a general
danger mobbing is not a risk specifically connected to one company. Also, because
§13 is too vague it must be interpreted restrictively as required in Article 103 GG. If
then mobbing would be considered business related it would mean a wider criminal
liability and would conflict Article 103 GG.
So, if we follow the decision of the BGH: Mobbing is not business related.ss

If we now come back to the case, it means that A had no guarantor position and is
not guilty of assault by omission.