Lawful summary dismissal because of insults on WhatsApp

The German Federal Labour Court (BAG) ruled on 24 August 2023 that an employee who makes comments about other colleagues in a "strongly insulting, racist, sexist and inciting to violence" manner in a private WhatsApp group can only rarely argue that a dismissal is invalid because of the confidentiality of the communication. Rather, in such a case, the dismissed person would have to specifically explain why he or she could reasonably expect that the content of the communication would not be disclosed by any member of the chat group, otherwise the employer may well be justified in dismissing the employee summarily.

What was the issue?

The claimant was a member of a private WhatsApp group consisting of six to seven long-time friends who were employed by the defendant. In this chat group, the claimant repeatedly made insulting and inhuman comments about superiors and other work colleagues. A member of the WhatsApp group showed the chat to another colleague, who copied it onto his smartphone. In the following, the HR manager found out about the chat messages, whereupon, amongst other things, the employment relationship with the plaintiff was terminated extraordinarily. 

The claimant had objected during the dismissal protection proceedings that the employer was not allowed to use the content of the chat history, as it had been a purely private correspondence. 

How did the lower courts decide?

Both the local labour court in Hanover and the regional labour Court of Lower Saxony upheld the action for unfair dismissal. Insulting statements such as the plaintiff had written in the chat were in themselves suitable to constitute a good cause for summary dismissal. However, the specific circumstances need to be taken into account. The statements, as part of a confidential communication between the group members, enjoyed constitutional protection, which took precedence over the protection of honour. The claimant had been able to trust that the communication via WhatsApp was confidential, as the size of the chat group had been manageable, access to the chat group could have been controlled by the plaintiff and there had been a close personal relationship between the group members.

How did the BAG decide in the present case?

The BAG reversed the decision and referred the case back to it. Unlike the two lower courts, the BAG denied that the plaintiff had a legitimate expectation of confidentiality with regard to the chat messages. Whether the protection of confidential communication may be claimed depends on the content of the messages exchanged and the size and composition of the chat group. In this context, a special explanation of the justified expectation of confidentiality was required if, as in the case at hand, the messages were insulting and inhuman. The claimant now has the opportunity to justify why he was entitled to have a legitimate expectation of confidentiality in view of the size of the chat group, its changed composition, the different participation of the group members in the chats and the use of a medium designed for the rapid forwarding of statements.

What is interesting about the decision of the BAG?

It is recognised in case law that insulting statements about superiors and/or colleagues do not necessarily justify dismissal. If such statements are made in confidential conversations in a small circle and the employee can therefore trust that his or her statements will not be passed on to third parties, a dismissal is usually invalid. 

While the cases decided so far mostly referred to conversations where insults were made, the BAG now commented on chat messages via WhatsApp and specified the criteria to be taken into account when assessing the justified expectation of confidentiality with regard to insulting statements. In particular, it should be emphasised that the content of the concrete statements can justify a special burden of proof for the employee. 

Insights

Even though the decision of the BAG refers to messages sent via WhatsApp, these principles can also be applied to other communication channels, such as chats via Facebook or Threema, pictures via Snapchat, etc. However, the circumstances of the individual case must always be taken into account. For example, if pictures with insulting or defamatory content were sent, it will certainly have to be considered whether the so-called one-time view function was selected, where the picture is automatically deleted after being opened once. On the other hand, it remains to be seen how the courts will evaluate the interaction with the Whistleblower Protection Act (HinSchG). Insults, defamation and slander are criminal offences and are covered by the HinSchG. Some employees may therefore be motivated to make reports of insulting statements made to them in confidence in order to benefit from the reversal of the burden of proof, e.g. in the event of possible imminent dismissals. Against this background, the question arises to what extent employees can expect interlocutors not to pass on their statements from this point of view.