Potential consequences of off-the-record exchanges in the workplace?

In a landmark ruling, the Federal Labor Court (BAG) overturned a previous decision by the Regional Labor Court of Lower Saxony and upheld the dismissal of an employee who was a member of a WhatsApp group sharing racist and insulting messages.

The case, decided in 2023 (Az.: 2 AZR 17/23), involved a group chat consisting of up to seven former and active employees of a company. The employee defended themselves with a dismissal lawsuit, arguing that the chat history was purely private. However, the Federal Labor Court found that the messages lacked confidentiality and demonstrated the employee’s inability to be reprimanded, justifying the extraordinary dismissal without prior warning.

The ruling sets a precedent for employers to take action against offensive messages from private chats that are forwarded to them. According to Peter Meyer, a specialist lawyer for labor law and a member of the managing committee of the Working Group on Labor Law in the German Bar Association (DAV), the quantity of racist and offensive messages led the court to conclude that no warning was necessary before the dismissal.

Employers must usually warn their employees before issuing a dismissal, but this can be bypassed if the employee continues their behavior after the warning. Meyer explained that the employee's behavior through the many messages demonstrated that they were not teachable.

The Federal Labor Court held that with a group of seven people, an expectation of confidentiality in a private chat may not be assumed without special evidence. The court emphasised that the context of the messages is first investigated before any action is taken.

The ruling comes as a reminder that offensive behavior, even in private settings, can have serious consequences in the workplace. It is crucial for employees to be mindful of their actions and words, both in and out of the office, to maintain a respectful and inclusive work environment.

Meanwhile, in a separate news item, a shop thief jumped into the Datteln-Hamm canal, and ASV Hamm-Westfalen started the new season with a derby win. These events, while unrelated to the labor court case, serve as a reminder of the diversity and dynamism of the world around us.