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Germany

Germany: Inappropriate Comments in a Private Chat as a Reason for Dissolving the Employment Relationship

The case at hand concerned a non-profit association that was predominantly active in refugee aid. The association was mainly supported by voluntary work. Connected to the dismissal of another employee, the association became aware of a chat via WhatsApp between the technical manager and other employees. In this chat, the technical manager, as well as two other employees, made inhuman comments about refugees and disrespectful comments about volunteers. This was also reported to the press. Thereupon, the association terminated the employment relationship with the technical manager with due notice.

However, the Regional Labour Court found the dismissal ineffective, but nevertheless terminated the employment relationship against a severance payment at the request of the employer. Even though, the (private) comments could be used as evidence in the court proceeding, the court found they did not constitute a breach of contract serious enough for justifying the dismissal. Private communication falls under the protection of the general right of personality and free speech. Therefore, the comments of the technical director were particularly protected, as they were made with private mobile phones to a limited group of persons and were meant to remain confidential instead of being passed on to other people.

Based on this, the court neither determined a lack of suitability for the job nor a breach of special loyalty obligations, as the technical manager did not have to carry out any care work with refugees himself. The court nevertheless terminated the employment relationship at the request of the association against a severance payment. The prerequisites for an exceptionally possible dissolution of the employment relationship by the court were met in this case. In accordance with the statutory requirements, a purposeful further collaboration serving the operational purposes of the company was not to be expected. As the comments became public, the association could not maintain its credibility towards refugees if the technical director remained employed. Furthermore, continued employment would have impaired the association’s ongoing business, especially with regard to finding voluntary support. In determining the severance payment, the court took both the fault of the technical director in the dissolution and the intended confidentiality of the comments into account.

Key Action Points for Human Resources and In-house Counsel 

  • Dismissals for misconduct that occurred in the employee’s private sphere are subject to high legal requirements, but are not impossible if the employment relationship is impaired.
  • In particular, employers can be successful in such cases, by requesting a dissolvement of the employment against payment of a severance in the event the termination is deemed invalid.