Termination without notice due to private chat messages

The Federal Labor Court (BAG) decided in a fundamental decision (Az. 2 AZR 17/23, judgment of August 24, 2023) that people who share insults and inhumane slogans about superiors and other colleagues in a private WhatsApp chat with colleagues Usually can be terminated without notice. The confidentiality of such a platform can only be expected in exceptional cases.

In the case decided, these were employees of an airline. They exchanged information about superiors and other colleagues in a WhatsApp group that had existed for several years in a way that was “strongly offensive, racist, sexist and incited to violence.” A group member showed the content to a colleague, who copied it and forwarded it to HR management. Those involved were then terminated without notice.

Invoking the confidentiality of the chat, which is protected by personal rights, the employees went to court with a claim for protection against dismissal. Furthermore, the statements were by no means meant seriously, but were merely an outlet for expressing dissatisfaction. Both lower courts upheld this argument and upheld the employee's complaint.

However, the BAG ruled that the members of the chat group could only rely on confidentiality if they could use the “special personal rights protection of a sphere of confidential communication”.

“An expectation of confidentiality is only justified if the members of the chat group can claim the special personal protection of a sphere of confidential communication. This in turn depends on the content of the messages exchanged as well as the size and composition of the chat group. If the subject of the messages - as is the case here - are offensive and inhumane statements about company employees, a special explanation is required as to why the employee could legitimately expect that their content would not be passed on to a third party by any group member." (FD-ArbR 2023, 459054, beck- on-line)

In this case, however, the content was so extreme that it would have required a special explanation as to why it could be assumed that it would not be forwarded to third parties.

The BAG referred the matter back to the LAG Lower Saxony. The plaintiffs can now explain why, given the size of the group, its composition, the participation of the group members and the choice of medium used, it could be expected that the messages shared would be confidential in nature.