Termination without notice due to chat comments: Current labor law ruling creates clarity!

Focus on the BAG ruling from August 24, 2023

In a recent employment law case, an employee was terminated without notice after insulting, racist, sexist and violence-glorifying remarks surfaced in a chat group with colleagues. The members of the group were long-time friends and colleagues, but the employer learned of the remarks and terminated the employee.

Would you like to know the background to the case and the consequences under labor law?
In this article, you can read how and on what basis the Labor Court, the Regional Labor Court and the Federal Labor Court have ruled and what significance the ruling has for employers!

Termination without notice due to comments in a chat group – Focus on the BAG ruling of August 24, 2023

An employee who makes derogatory comments about superiors and other colleagues in a chat group consisting of seven members, in particular in a strongly insulting, racist, sexist and inciting to violence manner, can only invoke the confidentiality of his comments in the chat group in exceptional cases if the employer terminates him without notice for this reason.

What is the background of the case?

In the underlying case, the plaintiff had belonged to a chat group with five other employees and a former colleague since 2014. According to the court’s findings, all group members had been “friends for many years” and two were related to each other.

In addition to private topics, the members of this chat group also exchanged information about superiors and work colleagues. In the course of the chat insulting and defamatory remarks about the superior and some colleagues were made.

The employer became aware of this chat by chance and terminated the plaintiff’s employment without notice. The plaintiff took action against this termination and filed an action for protection against dismissal. Both the Labor Court and the Regional Labor Court upheld the action for protection against dismissal. They justified this by stating that the plaintiff was entitled to assume that his comments in the chat group were confidential and that there were therefore no grounds for termination.

What is the ruling of the BAG?

The BAG took a different view. Particularly when – as in the present case – insulting and inhumane statements are made about company employees, the employee must explain in a special way why he could justifiably expect that the content of the chat history would not be passed on to third parties by any group member.

For this reason, the BAG also overturned the ruling and referred the case back to the LAG. It remains to be seen whether the plaintiff will now succeed in proving his expectation of the confidentiality of his chat message.

What does the ruling mean for the employer?

The ruling makes it clear that statements made by employees in chat groups, especially if they are insulting or defamatory, can have consequences under employment law. This means that employers are not powerless when confronted with such behavior.