In today’s digital world, it is common for employees to communicate through various platforms such as WhatsApp. However, this communication can also lead to consequences under employment law if it contains insulting or insulting statements towards superiors or colleagues.
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The case
An incident from Lower Saxony came into the public eye. A group of up to seven airline colleagues, including two brothers, maintained an active WhatsApp chat on their personal smartphones for years, as ZDF reported in an online article. When the airline faced challenges and restructured, the chat group members were faced with switching to a transfer company in 2022.
A few months earlier, an excerpt from this chat, in which there was harsh criticism of one of the superiors, was copied and presented to the works council and later to the human resources manager. It was a document of 316 pages, according to ZDF. A group member confirmed the authenticity of the extract in writing. It is believed that this was related to a workplace conflict. The messages contained offensive, racist and sexist comments, as well as statements glorifying violence. Ultimately, the employer decided on immediate dismissals, which were supported by the works council. The affected employees sought legal assistance and even went to the highest court, as ZDF reported.
The judgment and the legal situation
ZDF then reported that the Hanover Labor Court and the Lower Saxony State Labor Court ruled in favor of the affected employees. The reason given was that statements in a private chat group enjoy constitutional protection because they are considered an expression of personality. This protection may outweigh protecting the honor of the offended person, especially if the author of the message could have trusted that the communication would remain confidential. The employer was asked to pay outstanding salaries to the employees, ZDF continued.
The Federal Labor Court was critical of the previous ruling. It decided that employees can be terminated without notice if they make public inhumane statements. ZDF reported that whether statements are treated confidentially depends on both the type of news and the size of the group. The court returned the case to the lower court for further investigation. The lower court should re-examine the content of the messages as well as the size and members of the chat group. It is still unclear what conclusion the court will reach. What is certain, however, is that this case raises significant questions about privacy and freedom of expression in the workplace.
Another example
In another case, a technical manager at an association specializing in refugee aid exchanged messages with two colleagues in a confidential WhatsApp group. Surprisingly, the chat logs ended up in the hands of the association, which discovered that the technical director made derogatory and xenophobic comments about refugees, as anwalt.de reported in an online article. After these comments were leaked to the press, it sparked a public debate.
In view of these controversial comments, the club felt compelled to terminate the technical director. However, the manager took the view that his private communication and freedom of expression were being questioned and filed a lawsuit for protection against dismissal, according to anwalt.de. The association claimed in court that the seriousness of the statements justified dismissal and suggested that the employment relationship be terminated in exchange for severance pay if the court disagreed.
The ruling of the State Labor Court
The Berlin-Brandenburg State Labor Court found that the termination was unfounded because the comments were clearly made in a private context and the technical manager had assumed the conversation would be confidential, according to anwalt.de. However, it was emphasized that although his comments were concerning, they did not directly affect his professional duties or the mission of the association.
However, Rechtsanwalt.de reported that the LAG recognized the association’s request to terminate the contract and granted the technical director a severance payment. The reasons for this were the association’s damaged reputation as a result of the statements, which could affect future staff recruitment and PR activities, anwalt.de concluded.
D. Maier / editorial team finanzen.net