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

September 14, 2023

The Federal Labor Court In its judgment of August 24.08.2023, 2 (Az: 17 AZR 23/XNUMX) decided on the legitimate expectation of confidentiality in chat groups. Employees who express racist and offensive comments in private WhatsApp groups can be fired. Only in exceptional cases can one rely on protection through confidentiality in such a case.

1. FACTS

The plaintiff employee had worked for the defendant employer since 2014. He wrote in a chat group with initially five and later six colleagues. 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 complaining employee in the group made comments about his superiors and work colleagues in a “strongly offensive, racist, sexist and inciting manner” that incited violence.

The employer terminated the plaintiff's employment relationship without notice after she accidentally became aware of this. The employee filed a lawsuit against this with the help of a labor law specialist.

Both lower courts upheld the employee's dismissal protection claim. However, the defendant was successful in appealing to the Federal Labor Court. The Federal Labor Court overturned the appeal judgment and referred the lawsuit back to the State Labor Court.

2. DECISION

According to the Federal Labor Court, the State Labor Court made a legal error in assuming that the plaintiff had a legitimate expectation of confidentiality regarding the statements he was accused of and denied the existence of a reason for dismissal.

However, 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. According to the BAG, this depends (1.) on the content of the messages exchanged and (2.) the size and personnel composition of the chat group.

In the case of insulting and inhumane statements about company employees, a special explanation would be required as to why the employee could legitimately expect that no group member would pass on their content to a third party.

The State Labor Court must now give the plaintiff the opportunity to explain why he had a legitimate expectation of confidentiality given the size of the chat group, its composition, the different levels of participation of the group members in the chats and the use of a medium designed to quickly forward statements.

3. CONCLUSION

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