In operational communication, instant messaging services such as Whatsapp are increasingly replacing personal communication. With regard to digital and “analogue” private communication, the question arises as to the extent to which work- and company-related statements and opinions published in the private sphere are relevant to dismissal law. The core of this question is the complex distinction between the purely personal communication of employees and that which is (closely) related to their professional activity. From a legal point of view, companies must also deal with the question of whether the respective chat content can be used to justify personnel measures and in particular in any dismissal protection proceedings. Decisive and here the degree of confidentiality of the communication, which is difficult to measure objectively, as well as an operational reference of the statements made. This is also the subject of a judgment by the LAG Berlin-Brandenburg of July 19, 2021 (21 Sa 1291/20).
facts
The plaintiff, technical director of an association active in helping foreigners and refugees, had written in a racist and inhumane manner about refugees and employees of the association with his private mobile phone in a Whatsapp group consisting of himself and two other employees of the association. Among other things, he described refugees as “parasitic life forms” that would suck their host – meaning people involved in refugee aid – like a “tapeworm”. In addition, the plaintiff alleged that “people from Africa beyond the Sahara would define hygiene differently because of their socio-cultural background”. When the club became aware of this in the form of chat logs, which were allegedly passed on to the defendant and the local press by another chat participant, it gave the plaintiff an ordinary notice of termination.
decision
In its judgment of August 26, 2020 (Case No. 2 Ca 332/20), the ArbG Brandenburg Labor Court considered the dismissal to be invalid and rejected the defendant’s application for termination. The LAG Berlin-Brandenburg confirmed the invalidity of the termination, but terminated the employment relationship against payment of a severance payment.
The court initially did not see any ban on the presentation of facts or the use of evidence in the procedural introduction of the chat logs and justified this with the fact that the logs were introduced to protect the legitimate interests of the defendant and that the latter had also gained his knowledge unsolicited by third parties and not actively through his own observation of the plaintiff . Furthermore, the plaintiff’s statements in the chat did not relate to his most personal area of life. Ultimately, the introduction of the logs into the process is also unobjectionable in terms of data protection, since the defendant is acting in this respect to exercise the rights arising from employment law (Article 9 (2) (b) GDPR).
However, the termination was not justified because the plaintiff’s statements were made in a confidential setting and confidential communication falls under the protection of general personal rights. A lack of suitability on the part of the plaintiff due to his attitude towards refugees cannot be determined either, since the plaintiff does not have to perform any direct care tasks.
In the opinion of the LAG Berlin-Brandenburg – in contrast to the opinion of the lower court – no cooperation serving the operational purposes within the meaning of § 9 KSchG can be expected in the employment relationship concerned. The conditions for a judicial termination of the employment relationship are therefore exceptional, since the association can no longer act credibly towards refugees if the technical director is retained and the acquisition of voluntary support (which is essential for the association) and full-time staff could be impaired as a result . The employment relationship was therefore terminated against payment of a severance payment. When assessing the severance payment, the court took into account that the dismissed party was at fault for the termination, which, however, is reduced due to the desired confidentiality of the statements. The revision is pending at the BAG under file number 2 AZR 442/21.
practice note
For legal practice, the decision of the LAG Berlin-Brandenburg is of interest in two respects. On the one hand, in comparable situations, the question arises as to whether, in principle, logs of private messenger chats can also be used by companies to justify a termination and also in any subsequent dismissal protection process, whereby the use of the specific statements always depends on the individual case. Companies should therefore not fundamentally assume that private chat logs can be used in the future either, but should carefully check their admissibility in individual cases.
On the other hand, the question arises as to whether the knowledge gained from such a private chat can also justify an extraordinary or ordinary termination due to behavior. According to the case law of the highest court, statements made in a confidential conversation generally fall within the scope of general personal rights (BAG of December 10, 2009 – 2 AZR 534/08). In the case of confidential statements among colleagues, the employee can regularly expect that his statements will not be carried out to the outside world. If this confidentiality is lifted, this is not legally at the expense of the employee.
However, this classification is not mandatory, as the decisions of other lower courts (and also the case law of the administrative courts with regard to the “right-wing extremist” chat histories of police officers that have become public) show. For statements made outside of work, the general personality rights of the employee must be taken into account when balancing interests and, in particular, how much he or she trusted in the privacy of his or her statement. On the other hand, the seriousness of the violation of the employee’s duty of consideration towards the company must be included in the balancing of interests to be carried out. The decisive factor here is whether the private statement is related to the activity, which was the case in this case. If, on the other hand, such an operational reference is to be denied and the statement made is to be attributed solely to the private sphere of communication, the statement of a behavior-related termination is generally out of the question. In view of the appeal pending at the BAG, it remains to be seen whether this judgment and in particular the termination of the employment relationship will be legally valid.
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