According to a recent decision of the German Federal Labour Court (BAG), an employee will not usually be able to claim that messages in private chat groups are confidential if he or she makes strongly insulting, racist, sexist or violent comments about superiors and other colleagues.

An employee had belonged to a private chat group with a handful of other employees for several years. The members of the chat group had been friends for many years and some were also related to each other. The employees exchanged information in the group on purely private topics. However, the employee, as well as some other group members, also sent derogatory messages concerning colleagues and superiors. The comments were sometimes racist and in some cases incited violence. The employer learned of this by chance when one of the group members shared the chat content with them. The employee was summarily dismissed, and challenged the dismissal in court.

The Lower Saxony Regional Labour Court ruled in favour of the employee. The Court held that while it was true that the employee’s statements were, in principle, sufficient to justify summary dismissal, they did not justify this course of action in this particular case. This is because the statements were made in an environment in which the employee could legitimately assume confidentiality. His interest in confidentiality in the private sphere therefore outweighed the interest of the defamed and insulted colleagues.

The Federal Labour Court disagreed and found in favour of the employer, finding that summary dismissal was justified in the circumstances. An expectation of confidentiality is only justified if members of a chat group can claim that their communications were protected as personal, confidential communications. Whether they can do this depends on the content of the messages and the size and composition of the chat group. In the case of strongly insulting or even inhumane statements, an employee would have to specifically justify why, despite the seriousness of the statements, they could reasonably expect that the content would not be passed on to third parties by any member of the group.

The decision of the Federal Labour Court makes it easier for employers to take action against employees who make contemptuous and defamatory comments about their colleagues. In an earlier decision, which also dealt with insulting comments among colleagues, the Federal Labour Court had placed greater emphasis on the confidentiality of the comments. The Court had held that in the case of confidential communications, an employee may ordinarily trust that his or her statements will not be disclosed to the outside world. ‘Ordinarily’ meant that the employer needed to show why confidentiality should be departed from in order to justify a warning or termination.

With this new decision, the content of the statement is now of decisive importance. If the statements are sufficiently serious, the onus shifts in favour of the employer. This means that the employer no longer has to explain why the employee in question should not be able to rely on the confidentiality of their statement. Instead, the employee must explain why they should be able to rely on even the most serious statements remaining confidential.

For employers who learn of insults exchanged among colleagues and want to take action, this reduces the risk of litigation. Where sufficiently serious statements are concerned, the Court’s decision makes it easier for employers to take action against such behaviour, which can be extremely harmful to the atmosphere of the workplace.

*Kliemt.HR Lawyers