On August 24, 2023, the Federal Labor Court (Bundesarbeitsgericht – BAG) had to decide to what extent inappropriate communication between employees within a private chat group enjoys confidentiality or whether this can lead to consequences under employment law. The BAG came to the conclusion that it depends on the type of statement and the size of the chat group.
Background
The dismissed employee and subsequent plaintiff had been employed by the defendant since 2014. The plaintiff wrote in a group chat of a popular instant messaging app with initially five and later six other employees. The members of the group had all been friends for years. Two of them were even related to each other. In addition to discussing purely private topics, the group also made “highly offensive, racist, sexist and inciting violence” comments about superiors and other employees following a previous conflict at work. After a group member showed the chat history to a colleague and this colleague saved the messages, the employer became aware of the existence of this chat group and its content. The defendant then terminated the employment relationship with the employee for cause with immediate effect.
The employee filed dismissal so-called dismissal protection lawsuit against the termination for cause. After both lower courts upheld the plaintiff’s action and considered the termination to be invalid, the defendant employer was successful in its appeal at the BAG and obtained a referral back to the Higher Labor Court.
BAG: Message Type and Group Size are Decisive
In principle, the plaintiff’s statements may constitute good cause for termination with immediate effect under German law.
Whether an expectation of confidentiality on the part of the members of such a chat group is justified in this context depends on the content of the messages exchanged and the size and composition of the chat group, according to the BAG.
According to the BAG, the statements made in the present case within a group of seven people only concerned the private sphere of the plaintiff. They are not of a highly personal nature, but are aimed at belittling and insulting other people. The explicit calls for violence also affected the interests of the community. Due to the insulting and inhuman nature of the statements, a special explanation was required as to why the employee could trust that their content would not be passed on to third parties by any group member. In a group of this size, a “long-standing friendship” between members is also irrelevant, especially as this terminology contains numerous possible nuances. In addition, the BAG argued with the ease of copying and the rapid forwarding of statements in messenger services.
In summary, this means that the expectation of confidentiality depends on the type of statement and the size of the group.
For these reasons, the BAG partially set aside the appeal judgment and referred the case back to the Regional Labor Court.
Practical Effects
In this case, the BAG dealt for the first time with the question of whether a small chat group constitutes a kind of protected private space in which confidentiality prevails and insults or abuse can be exchanged without sanctions under German employment law.
Whether such statements in private chat groups can justify a termination for cause has so far been judged inconsistently in case law. In this context, the BAG now applies a stricter standard when assessing the expectation of confidentiality.
It remains to be seen whether the decision as a whole will mean a turnaround to the effect that greater weight will be given to employers’ interests in dismissing employees who engage in private hate speech about other employees or superiors. Private emails and chat messages with defamatory content are likely to become the subject of more frequent disputes under dismissal law as a result of this decision. Ultimately, this ruling could mean that those who make disparaging remarks about other employees – even in a supposedly “small circle” of employees – are more likely to face consequences under employment law in future.
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