Labour law

The Federal Labour Court’s Ruling on WhatsApp Chat Groups in Employment Law: An Analysis

The Federal Labour Court (BAG) in Germany recently addressed a case focusing on the use of content from WhatsApp chat groups in employment law proceedings. The case, identified as 2 AZR 19/23, involved the permissibility of using chat transcripts from a WhatsApp group as evidence in a termination case.

Case Overview

  • Background: The plaintiff, a former employee, was part of a WhatsApp chat group where he made offensive, xenophobic, and sexist remarks about supervisors and colleagues.
  • Development: The chat transcript was brought to the attention of the company’s management, which then issued a summary dismissal.
  • Legal Dispute: The plaintiff argued that the content of the chat was a private exchange and should not be admissible.

Federal Labour Court’s Decision

The BAG concluded that there was no prohibition on the use of the chat contributions in this specific case. Key points of the decision included:

  • No Prohibition on Use: The Court decided that the use of the chat transcript as evidence was permissible. It found no violation of the plaintiff’s personal rights, as the statements in the chat group were part of the private sphere of the plaintiff and did not justify an expectation of confidentiality.
  • Legitimate Expectation of Confidentiality: The Court recognized that a legitimate expectation of confidentiality can exist in scenarios where communication takes place in a particularly close and confidential setting. However, this was not the case here.

Legal Implications

This BAG ruling has important implications for handling private chat groups in the context of employment:

  1. No General Inadmissibility: The judgment clarifies that content from private chat groups is not categorically inadmissible in employment law proceedings.
  2. Circumstantial Evaluation: It depends on the specific circumstances, particularly whether there was a legitimate expectation of confidentiality.
  3. Practical Significance: Employees should be cautious about what they say in such groups, especially when it comes to colleagues or supervisors.

In summary, this decision demonstrates that the boundaries between private and professional communication can be fluid, and content from seemingly private sources can have legal consequences under certain circumstances.

German Lawyer at Law Firm Ferner Alsdorf
I am a specialist lawyer for criminal law + specialist lawyer for IT law and dedicate myself professionally entirely to criminal defence and IT law, especially software law. Before becoming a lawyer, I was a software developer. I am an author in a renowned commentary on the German Code of Criminal Procedure (StPO) as well as in professional journals.

Our law firm specialises in criminal defence, white-collar crime and IT law / technology law. Note our activity in digital evidence in IT security and software law.
German Lawyer Jens Ferner (Criminal Defense & IT-Law)