Termination without notice due to statement in private WhatsApp group

German Federal Labor Court, “BAG”, judgment of August 24, 2023 - Case No.: 2 AZR 17/23

Facts

The plaintiff, who was employed by the defendant, had been part of a chat group with five other employees since 2014. In November 2020, a former colleague was added as further group member. All group members had been friends for many years, two were related to each other. In addition to merely private topics, the plaintiff – as well as several other group members – made insulting and inhuman comments about superiors and work colleagues. After the defendant happened to become aware of these comments, it terminated the plaintiff’s employment for cause without notice. Both lower courts upheld the plaintiff’s action for protection against dismissal.

Decision

The defendant’s appeal was successful before the Second Senate of the Federal Labor Court. The court of appeal erred in law by assuming that the plaintiff had a legitimate expectation of confidentiality with regard to the statements of which he was accused and by denying the existence of a reason for termination. An expectation of confidentiality was only justified if the members of the chat group could claim the special protection of personal rights in a sphere of confidential communication. This in turn depended on the content of the messages exchanged and the size and composition of the chat group. If – as in the present case – the subject matter of the messages included insulting and inhuman statements about company employees, this required a special explanation as to why the employee can justifiably expect that their content would not be passed on to a third party by any group member.

The Federal Labor Court reversed the appeal judgment in this respect and referred the case back to the Regional Labor Court. The court must give the plaintiff the opportunity to explain why he could have a legitimate expectation of confidentiality in view of the size of the chat group, its changed composition, the varying participation of the group members in the chats and the use of a medium designed for the rapid forwarding of comments.

Practical advice

In this case, Germany’s highest labor judges dealt for the first time with the question of whether a small private WhatsApp group constitutes a protected space in which insults and abuse can be exchanged without incurring sanctions under labor law. The decision on this is to be welcomed. Even if great importance is to be attached to the protection of personality rights in general, this cannot apply without restriction. It will probably be difficult for the plaintiff to plausibly explain why, in a chat group with seven group members, it cannot be assumed that the statements made in such group will not be made public.