Germany: Derogatory Comments about Colleagues in Private Chatgroup Can Justify Dismissal
An employee had been dismissed without notice after making strongly insulting, racist, sexist, and violent comments about managers and other colleagues in a private chat group consisting of five of his colleagues and a former colleague. The employer found out about this by chance.
While both lower courts had ruled that the dismissal was invalid—in line with previous Federal Labour Court (FCL) case law—the FLC came to a different conclusion. It held that even though the comments were made in a private chat group, the employee may not have had a legitimate expectation of confidentiality.
Such an expectation can only be justified if the members of the chatgroup can claim that the communication should be kept confidential on the basis of their rights to privacy. However, this will depend on the size of the chat group and the nature of the messages exchanged. In this case, the messages were extremely offensive and inhumane in relation to managers and other colleagues.
The Court therefore held that the employee would have to provide a specific explanation as to why, in his or her opinion, he or she could legitimately expect that other members of the group would not pass on these statements to third parties. It remains to be seen how the Regional Court of Lower Saxony will assess the present case on the basis of these requirements.
- Previous FLC case law on an employer’s use of private communications for disciplinary purposes has been very restrictive. This ruling holds the potential for a change towards a more liberal approach. The judgement may also be relevant to future whistleblowing cases involving similar situations.
- Given the increasing use of social media and a variety of communication platforms, this ruling can be good news for employers. Even insults made in a “confidential” circle of colleagues can have a very disruptive effect on a business, as they discredit the person—often a manager—and undermine their position.
The following aspects need to be considered when assessing the claim to confidentiality of the conversation:
- Size and composition of the chatgroup
- Content of the messages exchanged
- Different levels of participation of the group members in the chats
- Nature of the medium in use, in this case, one designed for the rapid transmission of comments