Federal Labor Court on the legitimate expectation of confidentiality in chat groups

In its ruling of August 24, 2023 (Ref.: 2 AZR 17/23), the Federal Labor Court decided on the justified expectation of confidentiality in chat groups. Employees who make racist and insulting comments in private WhatsApp groups can be dismissed. Only in exceptional cases can one rely on the protection provided by confidentiality in such a case.


1. facts

The plaintiff employee had been working for the defendant employer since 2014. He wrote with initially five, later six colleagues in a chat group. All of them had been friends for many years and two of them were also related to each other. In addition to purely private topics, the plaintiff employee expressed himself in the group in "a strongly insulting, racist, sexist and inciting to violence manner" about superiors and work colleagues.

The employer terminated the plaintiff's employment without notice after it became aware of this by chance. The employee filed a lawsuit against this with the help of a specialist attorney for labor law.

Both lower courts upheld the employee's action for protection against dismissal. However, the defendant was successful in its appeal to the Federal Labor Court. The Federal Labor Court overturned the appeal ruling and referred the case back to the Regional Labor Court.


Decision 2

In the opinion of the Federal Labor Court, the Regional Labor Court had erred in law by assuming that the plaintiff had a legitimate expectation of confidentiality with regard to the statements of which he was accused and by denying the existence of a reason for termination.

However, an expectation of confidentiality is only justified if the members of the chat group can claim the special protection under personal rights of a sphere of confidential communication. According to the BAG, this depends on (1.) the content of the messages exchanged and (2.) the size and composition of the chat group.

In the case of insulting and inhumane statements about company employees, a special explanation is required as to why the employee could reasonably expect that their content would not be passed on to a third party by any group member.

The Regional Labor Court would now have to give the plaintiff the opportunity to explain why he could have a legitimate expectation of confidentiality in view of the size of the chat group, its composition, the varying participation of the group members in the chats and the use of a medium designed for the rapid forwarding of statements.


3. conclusion 

For the first time, the Federal Labor Court dealt with the question of whether a small WhatsApp group is a kind of protected, private space in which confidentiality applies and insults or insults can be exchanged without sanctions under labor law. So far, case law on defamatory statements in closed groups on messaging services in Germany has been inconsistent. It remains to be seen how the Regional Labor Court will decide and whether the Federal Labor Court will have to deal with the issue again. Employees are advised to pay attention to what they write in chat groups, as there is always the possibility that the chat history becomes public and the employer becomes aware of this. There is no blanket ban on the use of evidence for chat group histories in such cases.

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