How confidential is a chat group on WhatsApp? And is there a risk of being thrown out if gross insults from colleagues or bosses become public in the chats? The Federal Labor Court has now answered questions about Messenger use.
There are thousands of them: closed chat groups on the Internet – including those of work colleagues who, in the supposedly confidential digital space, sometimes swear or even rudely insult their bosses or colleagues. A ruling by the Federal Labor Court has now made it clear that, in extreme cases, it can cost you your job if the content of such chats becomes public.
The case of a WhatsApp group of friendly work colleagues who were employed by the airline TUIfly in Hanover-Langenhagen was negotiated.
Germany’s highest labor judges have decided that members of closed chat groups can only invoke protection through confidentiality in the event of insulting, racist or sexist statements about work colleagues in exceptional cases if there is an extraordinary termination (2 AZR 17/23). In doing so, they overturn decisions of the lower courts in Lower Saxony, which had accepted a “legitimate expectation of confidentiality” on the part of the members of closed chats – i.e. secrecy.
According to the decision of the Federal Labor Court (BAG), whether chat groups are protected, confidential communication depends on the type of message and the size and composition of the group. In case of doubt, its members would have to prove why they were allowed to trust each other.
Chat group as a bulwark
In the group from Lower Saxony there were blatant insults “which the Senate does not want to reproduce,” said the presiding judge Ulrich Koch at the hearing. “Is a chat group a kind of fortress, a bulwark where everything is allowed and there is no fear of labor law sanctions?” the judge asked the lawyers for the parties to the dispute. “The Internet is not a legal vacuum. It is also not a bulwark against the outside world,” said the lawyer for TUIfly GmbH. The employees’ lawyer warned of the far-reaching consequences of the decision – nobody can rely on confidentiality anymore. “The secrecy of correspondence is practically open,” he said.
Up to seven colleagues from the airline, including two brothers, formed the WhatsApp group for years and diligently exchanged messages on their private smartphones – including insults and insults to third parties. Before the planned restructuring, part of her chat history was copied and made its way first to the works council and then to the HR manager – a 316-page document, after all. One of those involved confirmed its authenticity in writing, as can be seen from the judgment of the Lower Saxony State Labor Court.
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The employer’s reaction
The company’s head of human resources was expected to do a lot when reading: the chats contained insulting, racist, sometimes inhuman and sexist statements as well as calls for violence – among other things, “punch in the face” is mentioned. The employer responded with extraordinary terminations, which the works council agreed to. Those affected went to court – up to the last instance in Erfurt. The dismissal actions of the chat members, which were successful in the lower courts, have now been overturned by the Federal Labor Court and the proceedings have been referred back to Lower Saxony. The regional labor court now has to clarify detailed questions about the specific case.
The legal assessment
Ultimately, the procedure was about the fundamental question of whether a WhatsApp group among colleagues is a kind of protected space. “In the case of small, closed chat groups, as is often the case with WhatsApp, the previous jurisprudence of the labor courts has been different,” said Bonn labor lawyer Gregor Thüsing of the German Press Agency. Cases were heard by courts in Berlin-Brandenburg and North Rhine-Westphalia, among others. He pointed out that chat content could always be forwarded or saved – unlike the spoken word in private space. According to Thüsing, insults with a business connection are “a classic reason for extraordinary terminations”.
social media and courts
According to the employment lawyer, gross insults and defamation of colleagues and employers on social media are increasingly playing a role in disputes before the courts in Germany. The spectrum is wide – from forwarding intimate photos of colleagues to termination via WhatsApp.