WhatsApp and Co.: Termination because of statements in private chat group

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 is 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 a further group member. According to the findings of the lower court, all group members had been "friends for many years", 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 inhuman manner, among other things, 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 to dismiss. 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 justified expectation of confidentiality with regard to the statements of which he was accused and in denying the existence of grounds for dismissal. An expectation of confidentiality is only justified if the members of the chat group can claim the special protection under personal rights of a sphere of confidential communication. This in turn depends on the content of the exchanged messages as well as the size and composition of the chat group. If the subject of the messages - as in the present case - are insulting and inhuman 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 appeal judgment in this respect and referred the case back to the Regional Labor Court. The court 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.

Federal Labor Court, judgment of August 24, 2023 - 2 AZR 17/23 -
Previous instance: Lower Saxony Regional Labor Court, judgment of December 19, 2022 - 15 Sa 284/22 -

Source: Press release of the Federal Labor Court from 24.08.2023