According to the German Federal Labor Court (2 AZR 17/23), an employee who makes strongly insulting, racist, sexist and violent comments about superiors and other colleagues in a private chat group consisting of seven members can only invoke a justified expectation of confidentiality against extraordinary termination of his employment relationship in exceptional cases.
The plaintiff, who is employed by the defendant, had belonged to a chat group with five other employees since 2014. In November 2020, a former colleague was added as a further group member. According to the findings of the lower court, all group members were “long-time friends,” and two were related to each other. In addition to purely private topics, the plaintiff – as well as several other group members – expressed himself in an insulting and inhumane manner about, among other things, superiors and work colleagues. After the defendant became aware of this by chance, it terminated the plaintiff’s employment without notice. (Source: Press release of the court)
Termination and warning in German labor law
For a termination based on conduct, circumstances are sufficient which lie in the conduct of the employee and which, when reasonably assessed and weighing the interests of the parties to the contract, make the termination appear to be reasonable and appropriate.
In particular, a culpable, reproachable breach of primary and/or secondary duties arising from the employment relationship in violation of the law or the contract is suitable as a reason based on conduct. Corresponding duties exist in the area of performance and in the area of trust. Contractual breaches in the area of performance exist, for example, if the employee performs poorly, whereby in principle a work performance of “average kind and quality” is owed.
Circumstances are sufficient which, from the point of view of a calm and reasonable employer, make the termination appear to be an appropriate response to the employee’s misconduct (BAG, 2 AZR 536/06). However, the justification of a termination for reasons of conduct is not to be measured by whether it is appropriate as a sanction for the breach of contract in question.
In termination law, it is not the sanction principle that applies, but the prognosis principle. A termination based on conduct is justified if trouble-free performance of the contract can no longer be expected in the future and future breaches of duty can only be countered by terminating the contractual relationship (BAG, 2 AZR 541/09). This expected finality is not given if milder means and reactions, e.g. a warning, are suitable to bring about a change in the employee’s behavior. More on this here on our blog!
Decision of the Federal Labor Court
Both lower courts upheld the plaintiff’s action to dismiss. The defendant’s appeal was successful before the Second Senate of the Federal Labor Court. The Court of Appeal erred in law in assuming that the plaintiff had a justified expectation of confidentiality with regard to the statements of which he was accused and in denying the existence of grounds for termination. An expectation of confidentiality is only justified if the members of the chat group can claim the special protection under personal rights of a sphere of confidential communication. This in turn depends on the content of the exchanged messages as well as the size and composition of the chat group. If the subject of the messages – as in the present case – are insulting and inhuman statements about company employees, a special explanation is required as to why the employee could justifiably expect that their content would not be passed on to a third party by any group member.
The Federal Labor Court reversed the appeal judgment in this respect and referred the case back to the Regional Labor Court. The court will give the plaintiff the opportunity to explain why he could have a legitimate expectation of confidentiality in view of the size of the chat group, its changed composition, the varying participation of the group members in the chats and the use of a medium designed for the rapid forwarding of statements. (Source: Press release of the court)
Injury and Opinions in German Law
The first question to ask is, whether this is an expression of opinion at all or rather a statement of fact. Once this has been clarified, a multi-stage procedure must be followed:
- Inadmissible is the expression of opinion that can be classified as a violation of human dignity, formal insult or bashful criticism ;
- If one denies this, a weighing between freedom of opinion and protection of honor is to be carried out, whereby all essential circumstances of the case are to be taken into account and the severity of the impairment of the affected legal interests is also to be included (summarized OLG Cologne 1RVs 180/19; 1RVs 110/17; 1RVs 296/17; 1 RVs 150/18).
The expression of disregard must be manifested by behavior with a corresponding explanatory value. The statement can be made verbally, in writing, figuratively, symbolically, through gestures, conclusive actions or assaults. In addition, the offender must identify with the defamatory content of his utterance. More here with us on the question of what constitutes an insult!
Brief look at the German legal situation
The (un)social behavior of employees has long preoccupied case law. Even if the present communication of the Federal Labor Court has received considerable attention in the media: it is not that new! However, the previous case law was based on the viewpoint that closed channels (such as a Whatsapp chat) have a certain protection of confidence – whereby the present case already involved a Whatsapp group, albeit a manageable one.
Employees have to face serious violations in any case, which can also lead to dismissal, such as when intimate photos are shared without permission in a Whatsapp chat. Generally, the most serious insults are a regular reason for dismissal, especially in the case of racist insults – in social media also when the insulted person himself cannot see the insult due to lack of a link; exceptions can be assumed in the case of trainees and, when a provocation has preceded.
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