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A delayed lawsuit does not always lead to forfeiture

A claim for damages for pain and suffering on grounds of harassment can be forfeited. However, mere inactivity of the claimant will not by itself lead to forfeiture as has recently been decided by the Federal Labour Court (Bundesarbeitsgericht, BAG – judgment dated 11 December 2014, docket number 8 AZR 838/13).

The plaintiff, an employee, sued for damages for pain and suffering following alleged harassment by his former superior. He claimed having been a victim of harassment between 2006 and 2008, with the last incident dated 8 February 2008. Following the alleged harassment, he was unable to work due to suffering from depression. He filed suit in December 2010.

The lower instance labour courts rejected his claim based on forfeiture, holding that the plaintiff was acting in bad faith when filing suit long after the alleged incidents. The Federal Labour Court, however, held that the plaintiff was not barred from bringing his claim. It held that forfeiture could only be assumed in very particular circumstances, and that merely waiting for a long time did not in itself lead to forfeiture. According to the court, failure to bring a claim in a timely manner only allowed the court to assume forfeiture if special circumstances dictated an obligation for a timely suit. However, the mere fact that it may be challenging to defend oneself against a claim does not warrant an expedited process.

As the Federal Labour Court remanded the suit to the relevant Higher Regional Labour Court, it remains to be seen whether the alleged incidents actually amount to unlawful harassment.