Never Insult your Boss – Not even in a Private Chat Group

Termination for cause for insulting the employer

Gross insults to the employer which constitute a considerable violation of the honor of the person concerned are, in principle, suitable to justify a termination for cause. If the insult occurred in confidential discussions between work colleagues, it cannot justify a termination of the employment relationship without further ado according to established case law. Confidential communication in the private sphere is an expression of personality and is guaranteed by fundamental rights. In this case, the employee may regularly trust that his or her (oral) statements will not be disclosed to the outside world, so that a termination based on this is invalid.

Insulting statements in confidential communications

The Federal Labor Court (BAG) has now ruled that an employee who makes strongly insulting, racist or sexist comments, or comments inciting violence about superiors and other colleagues in a private chat group, can only invoke a justified expectation of confidentiality in exceptional cases and that a termination based on this is therefore effective in case of doubt.

The plaintiff belonged to a chat group with initially five other employees. Later, a former colleague was temporarily added as a seventh group member. All group members had been friends for many years and were partly related to each other. In addition to purely private topics, the plaintiff and other group members made insulting and inhumane comments, among other things, about superiors and work colleagues in the chat conducted via their private smartphones. After the employer became aware of this by chance, the plaintiff's employment was terminated without notice.

Statements in a private chat group only confidential in exceptional cases

According to the BAG, the plaintiff could not invoke a justified expectation of confidentiality with regard to the statements of which he was accused, contrary to the decision of the lower courts. An expectation of confidentiality is only justified if the members of the chat group can claim the special protection of confidential communication. This in turn depends on the content of the exchanged messages as well as the size and composition of the chat group. If the subject of the messages – as in the present case – are insulting and inhumane statements about superiors or colleagues, a special explanation is required as to why the employee could expect that their content would not be passed on to a third party. In view of the size of the chat group, its changed composition, the varying participation of the group members in the chats and the use of a medium designed for the rapid forwarding of statements, the BAG assumed that this was not the case here.

Statements on social networks such as Facebook

It can be assumed that an employee can at least still rely on the special protection of confidential communication, in the case of verbal statements in a smaller group. However, the extent to which an employee can invoke the principle of confidential communication in the case of derogatory or insulting written statements about the employer or colleagues in social networks has not yet been decided by the highest courts. According to the press release on its ruling, which is the only available publication in that case to date, the BAG rejected the confidentiality of the communication, in particular due to the size of the chat group and the use of a medium designed for the rapid forwarding of statements. In view of this, an employee should not rely on the principle of confidential communication in the future, in the case of serious insults on social media such as Facebook, which are designed for the rapid forwarding of statements, or which do not have a small, manageable group of users.