You come home from a stressful day at work. As is well known, some unpleasant colleagues and supervisors don't always make things easy for you and many know that for sure: you talk about exactly this in private with friends or family. Statements that probably no one would like to repeat at work.
But what applies to statements in the digital space, such as WhatsApp?
Can employees express insults about colleagues and supervisors in private WhatsApp chats without having to fear employment sanctions and what are the limits? Or is this a protected, private space where confidentiality applies? This question was recently addressed by verdict of the Federal Labor Court.
What happened?
The employee (plaintiff) had already worked as a logistics employee for the employer (defendant), a large air transport company, for several years. Together with 6 other participants, he was in a closed WhatsApp chat group. These were all colleagues who had been friends with each other for many years and some were even related. In addition to private topics, massive insults were also exchanged during the conversations. The employee in question and other other members spoke “in a highly insulting, racist, sexist and incitement to violence” about supervisors and other colleagues. The statements made regarding female supervisors were sexualized and derogatory. Fanstasies of murder and violence were discussed. The contents of the messages exchanged included (excerpts) “the idiots should be gassed,” “I long for the day when this place starts to burn,” “pick them all up,” “A must be punched in the face, something unqualified.” There was even talk of an attack.
When the employer found out about the chat content by chance, he terminated the employee extraordinarily without notice. He saw serious breaches of duty under the employment contract in the xenophobic and violence-glorifying statements made.
The labor courts approved the former employee's action for protection against dismissal in first and second instance: the dismissals given were not justified. However, the employer went into auditing and was successful. The Federal Labour Court overturned the previous verdict and referred the case back to the lower court.
The decision
According to the Federal Labour Court, it depends essentially on the extent to which you can legitimately assume that the chat is confidential. An expectation of confidentiality is therefore only justified if the members of the chat group can make use of the special personal protection of an area of confidential communication. This depends on the one hand on the content of the messages exchanged and on the other hand on the size and composition of the group chat. Should these messages contain insulting, derogatory statements, a special explanation is required as to why the employee could expect that this content would not be passed on to third parties by any group member. If it is not possible to explain this, termination due to the statements made is entirely possible.
Confidentiality expectation: Yes or no?
It is certainly difficult to differentiate between a private, confidential space and an unjustified expectation of confidentiality, especially when it comes to statements in the digital space. Consider, for example, other social media (such as Facebook), which are either completely public, some with limited access or can only be used privately. However, the current case law of the Federal Labour Court makes it clear: in contrast to statements made on publicly available social media, the mere fact of a small private WhatsApp group in which the members are friends/related does not necessarily create a confidential space. Massive insults and incitement against colleagues represent a significant violation of honor beyond freedom of expression and do justify employment law sanctions, such as termination without notice in accordance with Section 626 of the Civil Code (BGB).
conclusion
With its ruling, the Federal Labour Court strengthens employers who may resort to legal sanctions in such cases. Even in a supposedly confidential space, they do not simply have to accept hate speech or inhuman statements and can punish them. However, care should always be taken and not hastily based on reasons for termination. It is always recommended to weigh up interests on a case-by-case basis.
Employees are particularly advised to think twice about what content they share about colleagues on social media such as WhatsApp. Such chat groups should be used with care. Relying on confidentiality in any case is obviously not a good idea. As the employer's lawyer already stated — which seemed to be a very convincing argument — “the Internet is not a legal vacuum.”
Freedom of speech, insults & employer protection obligations
Article 5 (1) Basic Law (GG) ensures everyone the right to freely express and disseminate their opinion in word, writing and image. This constitutionally protected right to freedom of opinion also applies in employment.
However, the right to freedom of expression also has limits. This is set out in Article 5 (2) GG: “These rights are limited by the provisions of general laws, the legal provisions for the protection of young people and in the right of personal honor.” This also includes the criminal offence of insult.
Insults are therefore not protected by freedom of speech. When a statement is considered an insult may be a matter of consideration in individual cases.
In the case described above, however, this was indisputable.
There are also some special features to consider in an employment relationship:
In accordance SECTION 241 BGB There is a mutual obligation in the employment relationship to take account of the rights, legal interests and other interests of the other party.
This is followed by the so-called Duty of loyalty of the employee: If he violates these, e.g. by making statements that seriously disturb company peace, the employer can generally punish this.
The employer is also affected by the so-called Duty of care: For example, he must protect the employee against risks to his life and health, sexual harassment, bullying and discriminatory disadvantages.
Appropriate measures must be taken to protect workers in the workplace and protect them from physical or psychological harm. In the event of a breach of the duty of care, the employee can sue and receive monetary compensation. The employee may also be entitled to terminate his employment relationship for good cause and to claim additional compensation.
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