The Federal Labor Court has clarified in a groundbreaking decision that an employee terminated for cause if the employee makes insulting and inhuman comments about superiors and colleagues in a private WhatsApp chat with colleagues.
According to the ruling (BAG, 24.08.2023 - 2 AZR 17/23), the chat only remains confidential in exceptional cases.
This landmark decision emphasizes the importance of respectful conduct in private communication channels and the possible consequences under employment law in the event of violations.
The ruling of the Federal Labor Court (BAG) is based on the following facts: A long-standing employee was a member of a private WhatsApp chat group with colleagues, some of whom had long-standing friendships and family ties. In addition to private topics, insulting and inhumane comments about superiors and colleagues were also exchanged in this group. The employee made statements such as "The Pole is the worst", "Everyone hang the Pole first", "New victim for the grabber from Bosporus Ms. A.", "Zionist ruling lobby", "And the Neegers are coming" and "He should shut his face, otherwise 'spiel mir das Lied vom Tod' will soon be playing again in the cinema in Germany."
After the employer became aware of these statements, he terminated the employment relationship without notice. The employee concerned then filed an action for unfair dismissal with the labor court.
The Federal Labor Court ruled differently and upheld my appeal as an employer, whereby the extraordinary dismissal was deemed justified. The lower court had wrongly assumed that the plaintiff could justifiably rely on the confidentiality of his statements. According to the Federal Labor Court, such an expectation of confidentiality only exists if the members of the chat group can claim special protection for their communications, depending on the content of the messages and the structure of the chat group. In the case of messages containing offensive comments about company employees, the employee must explain why he believed that this information would not be passed on to third parties.
The Federal Labor Court referred the case back to the Regional Labor Court to give the employee the opportunity to explain why he had an expectation of confidentiality due to the size and composition of the chat group as well as the varying levels of participation of the group members in the chat and the use of a fast-moving chat.
The ruling by the Federal Labor Court makes it clear that private chats on platforms such as WhatsApp can have significant professional consequences. Employees should be aware that even in private groups, content can be passed on to third parties, including their employer. The assumption that confidentiality protects against consequences under employment law, such as dismissal, is by no means self-evident.
For employers, the decision of the Federal Labor Court means a lower hurdle when taking action against serious, in particular insulting and inhumane statements within the workforce. This clarification is significant, as the Federal Labor Court still stated in its ruling of December 10, 2009 (2 AZR 534/08) that employees can regularly trust that defamatory statements about superiors and colleagues will not be made to the outside world.
The current decision emphasizes the importance of the content of the statements. In the case of particularly serious statements, an employee cannot simply rely on confidentiality. At a time when the boundaries between professional and private matters are becoming increasingly blurred, it is essential to be aware of the possible consequences. This ruling by the Federal Labor Court impressively underscores this reality.
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