Contradictions with company values as grounds for termination?

Organising leisure time is (not) a question for the employer

Not all employee behaviour that the employer does not approve of immediately entitles the employee to be dismissed. On the contrary, an employment relationship initially only establishes the obligation to fulfil proper work performance. However, there is also – as a so-called secondary obligation – the obligation of the parties to the employment contract to show mutual consideration for the legitimate interests of the other party. An employee must therefore also protect the interests of the employer in connection with the employment relationship, insofar as this can be demanded of him in good faith, considering his activities in the company, his own interests, and the interests of the other employees in the company. Conflicts are increasingly arising – not least in the recent past – regarding politically motivated activities by employees in their free time.

Due to the employee's fundamental right to the free development of their personality, the following applies in principle: private matters remain private. For example, an employee's mere membership of an anti-constitutional party is not in itself sufficient grounds for dismissal (see Federal Labour Court, BAG, judgement of 12 May 2011 – 2 AZR 479/09). This may seem surprising at first glance, but it cannot constitute grounds for dismissal per se due to the private nature of free-time activities and the employee's general personal rights. Furthermore, no employee is obliged to lead a ‘decent lifestyle’ – off-duty behaviour is not primarily a matter for the employer.

In the case of a public employer, this may be different in individual cases due to the duty of loyalty to the constitution – but here, too, the requirements are quite high. The Cologne Labour Court answered the question of whether the extraordinary dismissal of a public service employee by the city was justified because the employee may have taken part in the meeting of right-wing extremists in Potsdam in November 2023 and thus positioned herself against the free democratic basic order with a straight "no" (judgement of 3 July 2024 - 17 Ca 543/24). According to the Cologne Labour Court, mere participation in this meeting was not sufficient for dismissal. It remains to be seen whether an appeal will be lodged against the judgement and whether the second instance will decide differently.

The decisive factor in this case was that the employee did not act in an externally visible and representative manner for her employer but was merely entrusted with tasks that required a lesser degree of political loyalty in order to fulfil the job properly. This is because the so-called "function-related" duty of loyalty required by the BAG applies. The decisive factor is therefore the extent to which off-duty activities have an impact on the department, considering the employee's position in the company. A simple duty of loyalty is only breached if the specific effects of the behaviour are aimed at actively promoting or realising anti-constitutional objectives. In individual cases, this may result in the employer's interests in terminating the employment relationship prevailing. At the very least, attacks on the employer itself – for example by means of crude insults, xenophobic or sexist statements and calls for violence against the employer, its representatives or even work colleagues – constitute a significant breach of contract due to their operational relevance, even in a private chat group, and do not have to be tolerated (BAG, judgement of 24 August 2023 – 2 AZR 17/23, read more details about the judgment here.)

Attack on company values as grounds for termination

Whether attacks on an employer's own corporate values are also sufficient grounds for dismissal has been decided at first instance by the Berlin Labour Court in May (judgement of 22 May 2024 – 37 Ca 12701/23). It ruled that the termination without notice of an apprentice who publicly criticised his employer's treatment of Israel in private YouTube videos was effective. The background was as follows: The apprentice’s company clearly declared its support for Israel following the Hamas attack on Israel on 7 October 2023. Subsequently, several media outlets of the large corporation published articles about Israel's acts of war in the Gaza Strip in various publications. One of the company's apprentices did not agree with these posts: he first changed his profile picture on the messaging platform Teams to the text ‘I don't stand with Israel’ and published a video on his own YouTube channel entitled ‘How is a lie created?’. In this video, he criticised his employer's reporting on the topic in question using images from the employer. In terms of content, he claims that misinformation was deliberately spread and that alleged photos of evidence of atrocities were generated using artificial intelligence. Under an illustration of swastika-waving Nazi soldiers, he put forward the thesis that Israel uses the same tactics as the Nazis. Additionally, he cited a quote from Nazi ‘propaganda minister’ Joseph Goebbels: ‘If you tell a big lie and repeat it often enough, people will believe it.’

After becoming aware of the video, the apprentice’s employer dismissed him twice without notice, whereby the first dismissal was invalid due to the lack of a works council hearing. He saw the apprentice’s comments as an ‘attack on his company values’. The Berlin Labour Court deemed the second dismissal to be effective. Any truthfulness or the employee's freedom of expression were not decisive. Furthermore, the employer did not act contrary to the prohibition of measures under Section 612a of the German Civil Code (BGB) with the dismissal; rather, the dismissal was merely the defence of the employer's own business interests. The employer's clear commitment to Israel was well known.

Both parties can still appeal against the judgement. However, it is to be expected that any subsequent instances will also consider the termination of the apprenticeship to be effective, albeit primarily because this case is based on an apprenticeship with an ongoing probationary period, which according to the law can be terminated ‘at any time without observing a notice period’ (Section 22 (1) German Vocational Training Act). The specific reference to the Group's own corporate values is therefore unlikely to be decisive in the dispute.

Sylt video: Private matters do not always remain private!

The question of termination options in the case of private behaviour is discussed time and again when private employee behaviour – which is perceptible to a certain public – can have a particular impact on the legitimate interests of the employer. The employer's entrepreneurial freedoms, in particular the expectations of its own customers and contractual partners or the demands of a wider public for an explicit statement and a ‘clear edge’ can lead to an individual employee becoming unacceptable for the company and its reputation. It is therefore also possible to terminate an employee under pressure if other employees, contractual partners, or customers refuse to continue working with the person in question.

Ultimately, the employer is threatened with damage to its image and loss of sales, among other things, and therefore sometimes considerable financial damage.

This can be the case if an employee's behaviour attracts public attention. In addition to the YouTube video of the trainee in Berlin or the publicised participation of the municipal employee at the Potsdam meeting, the viral video recording from the Whitsun weekend on Sylt has recently been on everyone's lips. In the short video clip, several – apparently well-off – young adults can be seen shouting xenophobic slogans to the apolitical DJ song ‘L'Amour Toujours’, with one person also showing a Hitler salute and moustache. The video was subsequently shared, distributed and clicked on numerous times – partly pixelated, partly uncensored, shortened or in full length. This was not an isolated incident, but rather numerous cases subsequently became known in which the song was misused for the xenophobic connoted slogans ‘Germany to the Germans’ and ‘Foreigners out’. The comment columns were teeming with demands for criminal proceedings, dismissals, and harsh consequences for those involved. The addressees are often the employers of the video's protagonists. Although a young woman successfully obtained a temporary injunction that the video may no longer be shown without pixelation by the tabloid-newspaper “Bild” (Munich Regional Court I, decision of 12 June 2024 – 26 O 6325/24), from the employer's point of view the damage has been done. It has already become known that some of these employers have drawn the necessary conclusions and dismissed their employees, who were clearly recognisable in the Sylt video, without notice, as neither the slogans nor the ideas of the revellers that emerged were in line with the company's values.

Dismissals within the scope of the German Dismissal Protection Act (KSchG) can only be challenged in court within three weeks, otherwise their validity is legally fictitious. Whether the dismissed protagonists of the Sylt-video have filed a lawsuit for protection against unfair dismissal is – as far as can be seen – not yet publicly known. Even if this should be the case, however, the proceedings are likely to end with the conclusion of a settlement without a judgement having to be made on the legality of the dismissals.

The general right of personality also knows its limits

Ultimately, it can be said that the constitutionally protected right to the free development of one's personality in the context of employees' leisure activities also has its limits. As soon as an operational connection can be established and the employee's private behaviour reaches a certain level of publicity, employers can consider serious consequences under employment law. Whether it must always be the last resort of dismissal or whether an appraisal interview or a warning may be sufficient will always remain a question of the individual case.

It should also be emphasised that the question of personal rights depends largely on the ‘sphere’ in which the private activities took place. In the case of statements made in a close circle of friends within one's own home, which become known involuntarily, the balance may be different than in the case of a ‘viral’ video, which was recorded surrounded by numerous other people and – as far as known – forwarded voluntarily. It should be noted that politically motivated actions and statements by private individuals in particular not only harbour considerable potential for conflict in the public but can also lead to far-reaching consequences in the employment relationship.