Termination due to offensive comments in a chat group

If an employee makes highly offensive comments about superiors in a private chat group with several members, this can justify termination of the employment relationship without notice (BAG, judgment of 24.08.2023 - Ref.: 2 AZR 17/23).

The plaintiff had been a member of a WhatsApp group with six other employees since 2014. All group members were "long-time friends", two were even related. In addition to private topics, the plaintiff made insulting, inhuman and sometimes racist and sexist comments about superiors. Statements such as "Covidiotes should be gassed (...) concentration camp or something" or "G. used to be good for b... that's it" probably prompted one of the group members to pass them on to the employer. The employer terminated the employment relationship without notice.

In the appeal instance, the Federal Labor Court (BAG) did not assume that the plaintiff had an expectation of confidentiality worthy of protection regarding the statements and affirmed the possible existence of grounds for dismissal. In this respect, the BAG annulled the appeal judgment of the LAG of Lower Saxony, which was still to the contrary, and referred the case back there for a new hearing. The LAG will now have to give the plaintiff the opportunity to explain specifically why he should still have had a justified expectation of confidentiality in view of the size of the group, its composition and the different participation of the members.

In the proceedings, the BAG dealt with the question of whether a WhatsApp group of several colleagues can be a kind of private space (similar to a regulars' table) in which confidentiality applies and derogatory statements or insults about superiors can be exchanged without sanctions under employment law. However, according to the BAG, an expectation of confidentiality is only justified if the members of the group can claim the special protection of confidential communication under personality law. This depends on the content of the messages and the size and composition of the group. In the case of insulting statements about company employees, a special explanation is required as to why the employee should still be able to expect that their content will not be passed on to third parties.

PBC legal takeaways: In recent years, it has become an increasing phenomenon that Whatsapp groups of employees lead to trouble under employment law. The well-known motto "Today's friend is tomorrow's enemy" is all too often disregarded. Messages or supposed "jokes" documented in a colleague chat group can still be accessed years later. And that is why there is a risk that such statements will later end up with the employer and cause them to impose sanctions under employment law.