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A friend of mine works in the social sector in Germany. She works at a school for mentally disabled children. The school is loosely related to "Waldorf"-Philosophy, which apparently makes sexuality a taboo topic. She has told me several stories of a guy who continuously makes advances on female colleagues, including her. He has a reputation to be someone to stay away from, but it's proving hard to take actions against him.

Most women don't immediately go to teachers because they regard the acts done against them as too minor to be mentioned (an inappropriate shoulder touch here, an unwanted hug there). However, my friend had an explicit experience where he wanted her to hug him, she refused and got in her car, but he pulled her out, forcefully hugged and kissed her despite her declining and struggling. Later she learnt that a lot of girls have stories to share but never dare to. So we have a ton of minor stories and one major one. There might be more that are unknown so far.

The school has no HR department to speak of. My friend went to her supervisor roughly two to three months after the incident. He told her that he would have fired the guy immediately, but he said it's statute-barred by now. There also seems to be some fear in regard to her supervisors, as the harasser's mother apparently is a highly respected doctor at the workplace. The higher-ups are generally aware of the situation but refuse to take action for "unknown reasons". She has been told if one more "concrete incident" happens, they will let him go (and he will be banned from working in the social sector). He does get called in monthly for talks about his behaviour but without effect. He also behaves suspiciously around the mentally disabled children and teenagers, but it's much too vague for allegations.

What course of action can my friend take to make sure she, her colleagues, and the children remain safe from the harasser?

UPDATE: Because we all love a happy ending - My friend spoke to her supervisors again, apparently other people had finally stepped forward after all, and this time she was taken seriously. Two weeks later the offender got fired.

  • @sleske: IANAL, but Wikipedia says that an admonishment (Abmahnung) has to happen immediately. It can't happen more than one month after the incident. If no adminshment happened after two months, the employee can assume that his behaviour is accepted. (loosely translated) – nikie Dec 23 '18 at 12:33
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    The title, with the word "uncomfortable" is wildly inconsistent with the description of the man's behavior, which is sexual assault. It's the police who should be handling this, not the employer. – Ben Crowell Dec 23 '18 at 22:29
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    @nikie: IANAL either, but both Wikipedia and other sources agree that there is no explicit time limit. Wikipedia says it has to happen "unverzüglich" (without delay), but AFAIK even that is just a recommendation, there's no official precedent, let alone a law. – sleske Dec 26 '18 at 21:49
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    Thanks for the update, glad it turned out well! – bytepusher Feb 3 at 23:54
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Answering from a purly legal perspective here (I'm not a lawyer, but I have HR and employee law training):

It is quite difficult to fire someone based on what you describe, because if I were the defense lawyer I would call all of that hearsay and fabricate a possible conspiracy against my client. With no solid evidence, all I need is one or two witnesses who attest that the stated behaviour is untypical for my client and there's enough that the school will likely end up paying out a considerably sum for wrongful termination.

What needs to be done is to document the behaviour, with names and dates, and immediately after each event. This documentation needs to be kept with a trustworthy person (i.e. not one of the affected), if there is no HR department, then the school director.

After a few minor events or one major event, the school needs to give the guy a formal Abmahnung, in writing.

If his behaviour continues, a termination is possible, but companies typically give at least a second and very often a third Abmahnung before they terminate, just to play it safe.

Note that this is a regular termination (verhaltensbedingte ordentliche Kündigung), with notice and Kündigungsfrist. Note that if there is a Betriebsrat or Personalrat, it needs to be heard or the termination is legally invalid for formal reasons.

If a major event is strong enough, there is the possibility of immediate termination (außerordentliche Kündigung, also called "fristlos" colloquially). However, consult a lawyer before doing that. The most important thing is that it must be done within 14 days of the management getting knowledge of the event, or the termination is legally invalid for formal reasons. These are strict dates - I know of at least one head of HR/legal of a large company who personally drove to an employees home on Friday evening with a lawyer as witness to drop in the termination letter to make sure this deadline was kept.

In both cases, what you have on paper is the most important thing. He almost certainly will fight this in a court, in the hopes of reaching a settlement. Unless you have excellent documentation, his chances for getting at least 2 or 3 months of salary are pretty good. Because of the lack of hard evidence.

So strictly speaking, the answer to your question of what to do is:

  • keep written records of every event, written down immediately after the event
  • send all of them to management, with a copy to a lawyer if management isn't entirely trustworthy
  • if there is a Betriebsrat or Personalrat, involve them

There are other things the management could do, especially reassigning him to a position where he doesn't have contact with the children, but they don't solve the problem asked.

  • My understanding is that Germany (maybe all the EU?) is similar to the Netherlands in that you need an official (government issued) declaration of good behavior to work in these kinds of places. This is not some office job with a he said she said situation. – Eric Dec 23 '18 at 7:37
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    "because as the defense lawyer I would call all of that hearsay and fabricate a possible conspiracy against my client". a) in this situation you would most likely not be defense lawyer, since you would not defend him in front of a court, but sue the company b) calling something which a few witnesses report as hearsay is most likely not a good idea in front of a court c) You would for sure not "fabricate" a conspiracy (that could get you in jail) d) you watch too much american TV shows - in Germany hearsay not a knockout. e) be careful when "selecting" witnesses. The court may not like it. – Sascha Dec 23 '18 at 14:49
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    You're not a lawyer but give legal advice...mkay.The most prudent way is to include authorities and lawyers, potentially the courts,NOT solely the school!You only focus on if the harasser can/will be fired.If he commited a sexual assault,losing his job is his smallest problem.OP asked what course of action to take to have them safe from him.While having him removed (if) from school may be partially working but it will not serve justice,enter into his legal record nor potentially prevent future attacks. – DigitalBlade969 Dec 23 '18 at 16:15
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    @Tom I know you're not a lawyer, but direct testimony is not hearsay. Sure, a lot of what the OP relates is hearsay, but the assault is not. A good lawyer will take depositions of the staff as part of the process, so the hearsay we see now will be direct testimony in court. Of course, direct testimony it's been reported and direct testimony the school never heard about it will likely turn out badly for the school, so the school will likely act on what they should have acted upon beforehand. – Edwin Buck Dec 23 '18 at 16:39
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    @Tom: A victim of continued harassment at the workplace asks what to do and you answer how you would defend the guy legally? You have obviously no clue how HR really works. Situations like these are never played out in court. If management and HR feels like it's easier to replace the guy than replacing women continuously leaving, and the Betriebsrat feels that women are also employees which should be protected, then this usually ends with a meeting of the guy with HR, Manager and Betriebsrat where they will make him an offer which he can't reject. – Sascha Dec 24 '18 at 16:24
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Forcibly hugging and kissing is not minor. It is likely assault and a criminal offense. Even in Germany, this should be grounds for firing.

From what I have read, the statute of limitations on sexual assault is at least three years so I think the supervisor is avoiding taking action. This is extremely concerning considering this kind of sexual predator should not be working with mentally disabled children.

I suggest escalating this to the police to press charges against the individual.

Alternatively, you might consider sharing the story of a sexual predator working with mentally disabled children, including that the supervisor took no action after a criminal sexual assault, with local news media (TV or newspaper) or social media. This is the kind of story that goes viral and wins journalism awards.

  • Regardless the supervisor said 3months is too late. What should she respond to that? – anon Dec 22 '18 at 20:45
  • @anon with a lawyer – bruglesco Dec 22 '18 at 20:47
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    @anon Please see my rescued answer. – Eric Dec 22 '18 at 22:34
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    @anon If the supervisor said "3 months is too late", then she should say "I am quite sure that this is wrong. Could you show me where your information comes from? Anyway, if you refuse to act on my concerns, I would like that in writing from you, and then I will find a lawyer and hand it to them. " – gnasher729 Dec 22 '18 at 23:29
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    The supervisor mixes two things. He is right that for immediate termination, action must be taken with 14 days or it is, indeed, statute-barred. However, that 14 days start the moment management gets knowledge of the event, not the time of the event itself (§626 BGB). – Tom Dec 23 '18 at 6:45
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What would you do if it was theft or a violent attack?
Do the same.

  • make sure they are clear sexual harassments or assaults (which your example is)
  • get a lawyer for legal advice and potentially sue
  • go to police and report the incident
  • file a complaint with the "Schulaufsichtsbehörde"

Schools, especially private ones have just like companies vested interests in downplaying or deflecting allegations.
By including the authorities you'll get a much higher chance that your grievance is taken seriously and consequently dealt with by objective third parties.

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Document all those "minor" incidents towards you and strange behavior towards children with dates and witnesses. Then approach your superiors together.

1

Let's make not mistake her, hugging a colleague unwanted is not a minor thing (i am male)

My recommendation to your friend would be would be:

  • seek help at a public or private institution giving free consulting (e.g. http://www.antidiskriminierungsstelle.de/DE/Home/home_node.html)

  • try to talk directly to former victims in order to figure out if they would be willing to make a written statement (e.g. all together in a letter).

  • figure out if you want to leave, fight this out or accept that the situation continues

  • potentially: get a lawyer

  • figure out how dirty you want to fight and which consequences you are willing to accept. If you find a way to inform the parents - and ask a lawyer about it - without breaking your working contract or the trust of your employer, it could be that the pressure takes care of the rest. Obviously not a strategy for winning friends.

  • In Germany, your employer is responsible for providing a safe environment without excessive psychological stress, make it clear that the legal problems surrounding the potential firing of the guy are not an issue between you and your employer. The issue between you and your employer is to work in a safe, constructive environment.

  • under no circumstances try to blackmail your employer (like "if it is not handled, i will put it on twitter") or publish it in general.

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My answer is risky

If all other female employees start being ignorant and arrogant (to a limit permissible in the premises) with that person, it will force him to perform an action which is more noticeable than what you call a "minor touch". Then it will be easier to spot, prove and report. However this could also lead to unwanted scenarios that you need to be prepared for.

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    Given that this answer basically amounts to "provoke him into doing something worse", this seems like really terrible advice. – V2Blast Dec 30 '18 at 4:24
  • I didn't advice to "provoke". I advised to "ignore" and behave "arrogant" to express your dislike. However I believe I mentioned my answer is risky. – Neel Basu Dec 31 '18 at 19:31
  • You didn't use the word "provoke", but "be arrogant [to] force him to perform a [more extreme] action" is essentially the definition (#1) of the word. The point is that you're essentially encouraging the female employees to put themselves in potential danger in order to make sure the male employee in question commits a more "noticeable" offense - which, again, is irresponsible advice. (Mentioning that it's "risky" doesn't make it any less of a bad idea.) – V2Blast Dec 31 '18 at 23:18
  • Those who take it as a bad idea has responded. A bad idea is also an idea. If one can calculate the effects in advance and plan accordingly it is never an irresponsible move. Every idea is bad idea if executed without planing the next moves. And the worst idea can yield the best benefit if executed with care. – Neel Basu Jan 1 at 16:56

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