Termination due to comments in WhatsApp chat

All kinds of thoughtless things are often shared and written in private chats. This can sometimes include statements that an employer doesn't like at all. But can an employment relationship be terminated because the employee writes derogatory comments in a private chat on a messaging service such as WhatsApp?

The Berlin-Brandenburg Regional Court (judgment of 19.07.2021, ref. 21 Sa 1291/20) had to deal with this question. We will discuss the outcome and the reasoning in this article.

Employee of an association for refugee aid incites hatred against refugees

Hate speech against refugees is nothing new on social media. However, when an employer found out that an employee and two other employees were making "inhumane comments about refugees" and making "derogatory remarks about helpers", he was dismissed with notice. No wonder, one might think, as the employer was a non-profit association for refugee aid. The dismissed employee was the technical manager.

The employer became aware of the WhatsApp comments as part of the dismissal of another employee.

Judgment & reasons: Personal rights, duties of loyalty and loyalty to the constitution

The dismissed technical manager then filed an action for unfair dismissal. This was also upheld by the LAG. However, the court terminated the employment relationship in return for the payment of a severance payment. More on this later.

First, the Higher Labor Court assessed the status of the private chats. In principle, the statements made can be used in court, but they do not justify dismissal. The reason for this is the fact that the communication was confidential. The chat falls under the protection of the general right of personality, as it

• took place in a very small circle,
• was written with the private cell phone and
• a transfer was not intended.

As a technical manager, the dismissed employee was also not subject to any special loyalty obligations. This was justified by the fact that, as a technical manager, he has no direct supervisory duties. Furthermore, according to the court, the statements did not indicate a lack of loyalty to the constitution. This is mandatory for employees of an association that is part of the public service.

Successful dismissal protection action without continued employment

The dismissal was declared invalid by the LAG for the reasons stated above. The association then applied for the termination of the employment relationship in return for payment of a severance payment. The court granted this application. As the content of the chat on WhatsApp had become public knowledge, the association could "no longer act credibly towards refugees".

However, the ruling is not yet legally binding and an appeal to the Federal Labor Court has been permitted.

Conclusion: Terminations due to private chats are rarely lawful

The case described above is somewhat more complicated due to the constellation. As a normal employee, you will usually be successful if you bring an action for unfair dismissal against a dismissal due to a private chat. Our employment law lawyers will be happy to provide you with comprehensive advice and also represent you before the labor court. Get in touch with us.