How private is a WhatsApp chat group really? And what are the consequences if employees in such a closed group insult colleagues or bosses – and then it becomes public? The Federal Labor Court dealt with these questions and made a landmark decision on Thursday. Accordingly, members of such chat groups can only rely on the protection of confidentiality in exceptional cases in the event of racist statements or coarse insults. That depends on the one hand on the type of message and on the other hand on the size of the group. The court ruled that you may well be threatened with extraordinary dismissal if inhuman abuse becomes public.
For the first time, Germany’s highest labor judges dealt with the question of whether a rather small Whatsapp group is a protected, private space in which confidentiality applies. Insults or insults could then be exchanged accordingly without labor law sanctions. What it was about:
The case
Up to seven friends from Tui Fly, including two brothers, formed a Whatsapp group for years and exchanged messages on their private smartphones. Her employer got into turbulence, restructuring was pending. Chat group members should move to a transfer company in 2022. But then part of her chat history was copied with wild abuse of one of her bosses and first reached the works council, then the HR manager – after all, a 316-page document. One of those involved confirmed its authenticity in writing, as can be seen from the judgment of the Lower Saxony State Labor Court in December 2022.
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, right up to the last instance.
The legal assessment
“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,” says Bonn labor lawyer Gregor Thüsing. He described the insults in the Lower Saxony case as blatant and inhuman. “The question is whether it’s still private and therefore protected.” Finally, chat content could be forwarded and stored. According to Thüsing, operational insults are “a classic reason for extraordinary terminations”.
In the specific case, the labor court in Hanover and the state labor court in Lower Saxony had upheld the complaints of the bullying employees in the lower courts. The employer should pay them back wages. The regional labor court, which allowed an appeal, justified its decision as follows: “As an expression of personality and as a condition of its development, statements in a private chat group enjoy constitutional protection, which takes precedence over the protection of the honor of the person affected by the statement if the utterer intends to protect the confidentiality.”
Now, however, the Federal Labor Court makes it clear: If inhuman statements about company employees are the subject of the chat messages – as in the specific case – then “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”.
The Federal Labor Court has now referred the matter back to the Lower Saxony Regional Labor Court. The plaintiff has the opportunity to explain why, given the size of the chat group, its changed composition, the different participation of the group members in the chats and the use of a medium designed for the rapid forwarding of statements, he was entitled to have a legitimate expectation of confidentiality.
The social media
According to the employment lawyer Thüsing, gross insults and libel against colleagues and employers on social media are increasingly playing a role in disputes before courts in Germany. The spectrum is wide: from forwarding intimate photos of colleagues to termination via Whatsapp. The case law is now clear “if insults are not pronounced in the protection of a small chat group”. This could justify extraordinary terminations without notice.