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Extraordinary dismissal due to a statement made in a chat group
Expert article on employment law for employers
Where confidentiality ends in private chat groups
Is it permissible to badmouth superiors and colleagues with impunity in a private WhatsApp group because it's considered a legal no-man's-land? The Federal Labor Court has issued a landmark ruling on this issue, making it clear: Anyone who expresses themselves in a chat group in an insulting, racist, or violence-glorifying manner can only invoke confidentiality in exceptional circumstances and must expect immediate dismissal. This article explains the underlying case, the ruling, its subsequent developments, and the lessons that employees and employers should draw from it.
The case: Insulting chat messages in a private WhatsApp group
An employee who had worked at the company for more than 20 years was a member of a private WhatsApp group with seven participants, mostly colleagues, some of whom were connected through long-standing friendships and family relationships. Besides personal matters, the members also exchanged information about superiors and colleagues.
The court deemed these messages highly offensive, racist, sexist, and inciting violence. They denigrated individuals, including on the grounds of their origin, and some contained language glorifying violence. Upon learning of this, the employer issued an extraordinary termination without notice. The employee subsequently filed a claim for unfair dismissal. The lower courts initially declared the dismissal invalid, arguing essentially that the employee was entitled to expect confidentiality within the private group.
The ruling of the Federal Labour Court
The Federal Labor Court assessed the case differently and upheld the employer's appeal (Federal Labor Court, judgment of August 24, 2023, case no. 2 AZR 17/23). According to the Federal Labor Court, if insulting and dehumanizing remarks about company employees are made in a private chat group with seven participants, the employee must specifically demonstrate why they could legitimately assume that no participant would disclose their remarks to third parties. Therefore, an expectation of confidentiality is not automatically present.
The lower court's decision was overturned and the case remanded to the Regional Labor Court. The employee will be given the opportunity to explain why, given the size and composition of the group, the varying levels of participation among its members, and the use of a fast-paced medium, he was entitled to expect confidentiality. On the same day, the panel ruled similarly in two parallel cases involving other group members.
Under what conditions can confidentiality be legitimately expected?
The decision demonstrates that not every private group automatically qualifies as a protected space. Whether a legitimate expectation of confidentiality exists depends on a comprehensive assessment of the circumstances. The following criteria are particularly decisive:
- The content of the messages: The more serious the statements are, such as insults, incitement or calls for violence against company employees, the more likely the employee must expect them to be passed on.
- The size of the group: In a very small, closely trusted circle, an expectation of confidentiality is more understandable than in a larger group.
- The composition and closeness of the relationships: A particularly close, such as familial, relationship of trust can strengthen protection, while merely loose collegial contacts cannot.
- The medium used: With a fast-paced messenger service whose content can be easily forwarded or saved, the expectation of absolute confidentiality is less justified.
In cases of particularly serious statements, the mere assertion that the chat was private is insufficient. The employee must specifically explain the basis for their expectation of confidentiality.
The outcome of the case: the renewed decision of the Lower Saxony Regional Labor Court
Following the remand, the Lower Saxony Regional Labor Court reheard the case and upheld the summary dismissal (Lower Saxony Regional Labor Court, judgment of September 30, 2024, case no. 15 Sa 787/23). It denied a legitimate expectation of confidentiality, as the relationships within the WhatsApp group did not reach the level of familial trust. Due to the seriousness of the statements and the resulting loss of trust, the court deemed a continuation of the employment relationship unreasonable. Freedom of expression, therefore, does not protect racist, sexist, or violence-glorifying statements that violate the fundamental rights of others.
In this case, it is therefore clear that the statements justified the dismissal without notice. The Federal Labor Court's (BAG) line of reasoning has thus been confirmed in this specific application.
Have you been dismissed without notice? As a lawyer, I would be happy to help you enforce your rights under employment law!
Consequences for employees and employers
For employees, the message is clear: A private chat group is not a protected space where anything goes. Messages can be forwarded to third parties, including the employer, and in cases of insulting or dehumanizing statements, the expectation of confidentiality offers no reliable protection against employment law consequences. This is all the more true because the Federal Labor Court (BAG) has thus departed from its earlier, more lenient jurisprudence. In serious cases, even summary dismissal without prior warning is possible.
For employers, this ruling makes it easier to take action against serious, especially insulting and dehumanizing, remarks made within the workforce. It is significant because, in a ruling dated December 10, 2009 (2 AZR 534/08), the Federal Labor Court (BAG) had previously assumed that employees could generally expect that defamatory remarks about superiors and colleagues would not be made public. Now, the decisive factor is the content of the remarks: the more serious the violation, the less weight the argument of confidentiality carries.
What those affected should do now and when legal help is advisable
Anyone dismissed because of chat messages should not hesitate, as a claim for unfair dismissal must be filed within three weeks of receiving the dismissal notice. Within this period, it can be examined whether there was a legitimate expectation of confidentiality, how the content reached the employer, and whether the formal requirements for dismissal were met. The question of whether the chat content could even be used as evidence may also be relevant.
Employers, for their part, should carefully document the facts, keep the two-week deadline for extraordinary termination in mind, and clarify how they became aware of the relevant information. In both scenarios, legal advice is recommended. As a lawyer, I assess the chances of success in each individual case and represent your interests against the opposing party and before the labor court.
Conclusion and Outlook
The ruling of the Federal Labor Court and its subsequent confirmation by the Lower Saxony Regional Labor Court make it clear that private chat groups are not a lawless space. Anyone who expresses insults, racism, or glorifies violence about superiors and colleagues can only invoke confidentiality in rare exceptional cases and must even expect to be dismissed without notice. Because the boundaries between professional and private life are becoming increasingly blurred, employees should be aware of the potential consequences and seek legal advice early on in the event of a dispute.
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Yes. According to the case law of the Federal Labour Court, insulting, racist or violence-glorifying statements about superiors and colleagues, even in a private chat group, can justify extraordinary dismissal.
The Federal Labor Court (BAG) clarified that confidentiality is not automatically guaranteed in a chat group. In cases of serious statements about company employees, the employee must explain in detail why they were entitled to expect confidentiality. The court then referred the case back to the Regional Labor Court (LAG).
Only in exceptional cases. The decisive factors are the content of the messages, the size and composition of the group, the closeness of the relationships, and the medium used. The more serious the statement, the less justifiable a legitimate expectation of confidentiality can be.
Yes. In a very small, closely-knowledged circle, an expectation of confidentiality is more justified than in a larger group. However, in the case at hand, with seven members, the closeness of the relationships was not sufficient to justify special protection.
No, not without limitations. The Lower Saxony Regional Labor Court has clarified that racist, sexist, and violence-glorifying statements that violate the fundamental rights of others are not protected by freedom of expression.
After the Federal Labor Court (BAG) referred the case back to the lower court, the Lower Saxony Regional Labor Court (LAG Niedersachsen) upheld the summary dismissal on September 30, 2024 (15 Sa 787/23). The court found no legitimate expectation of confidentiality and deemed the continuation of the employment relationship unreasonable.
Not necessarily. In cases of particularly serious breaches of duty, dismissal without notice can be effective even without prior warning, as the employee must be aware that their behavior is unacceptable. The specific circumstances of each case are always decisive.
It depends on the individual case. If, for example, a group member has voluntarily disclosed content, it can generally be used. Nevertheless, data protection laws and potential prohibitions on its use should be examined.
No. The principles can be applied to other messaging services and social networks. The decisive factor is not the specific platform, but whether there was a legitimate expectation of confidentiality and how serious the statements are.
As soon as a dismissal or a corresponding allegation is raised, a lawsuit against the dismissal must be filed within three weeks. I assess the chances of success and ensure compliance with deadlines, for both employees and employers.
