BAG: Dismissal due to insult in Whatsapp Chat

An employee who makes strongly insulting, racist, sexist and violent comments about superiors and other colleagues in a private chat group consisting of seven members can only invoke a justified expectation of confidentiality as grounds for extraordinary termination of his employment relationship in exceptional cases.

The plaintiff, who was employed by the defendant, had belonged to a chat group with five other employees since 2014. In November 2020, a former colleague was added as another group member. According to the lower court’s findings, all group members were “long-time friends,” and two were related to each other.

In addition to purely private topics, the plaintiff – as well as several other group members – expressed himself in an insulting and inhumane manner, including about superiors and work colleagues. After the defendant became aware of this by chance, it terminated the plaintiff’s employment for cause without notice.

Both lower courts upheld the plaintiff’s action for protection against dismissal. The defendant’s appeal was successful before the Second Senate of the Federal Labor Court. The Court of Appeal erred in law in assuming that the plaintiff had a legitimate expectation of confidentiality with regard to the statements of which he was accused and in denying the existence of a reason for termination.

An expectation of confidentiality is only justified if the members of the chat group can claim the special personal rights protection of a sphere of confidential communication. This in turn depends on the content of the messages exchanged as well as the size and personnel composition of the chat group.

If the subject of the messages – as in the present case – is insulting and inhumane statements about company employees, a special explanation is required as to why the employee could justifiably expect that their content would not be passed on to a third party by any group member.

The Federal Labor Court reversed the appellate judgment in this respect and referred the case back to the Regional Labor Court. This will 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.