GER: When Are Private Chats Confidential?

Oct 6, 2023 Benn-Ibler Rechtsanwälte

Strongly insulting, racist, or sexist remarks made by an employee to their superior or other fellow employees in a private chat group can be grounds for dismissing the employee without notice. It is only in exceptional cases that an employee can rely on a legitimate expectation of confidentiality.

The defendant’s former employee had been a member of a chat group with five, and later six, fellow employees since 2014. In addition to strictly private topics, the former employee also made insulting and degrading comments about co-workers and superiors. The employer terminated the employee without notice after accidentally discovering this. The former employee sued. Both lower courts upheld the dismissal. The employer then appealed to the German Federal Labour Court (Bundesarbeitsgericht, hereinafter BAG) and was successful.

The BAG ruled:

The lower courts had erred in law in assuming that the author of the chat messages expected his statements to be confidential and therefore could not be the subject of an extraordinary dismissal. This meant that the grounds for dismissing the employee did not exist.

An expectation of confidentiality can only be justified to the extent that the members of a chat group can claim the special protection of personal rights of a confidential sphere of communication. This in turn depends on the content of the messages exchanged. According to the BAG, if the messages contain insulting and misanthropic remarks about company employees, the employee must explain in detail why he could expect that the content of the chat group would not be passed on to third parties.

The BAG overturned the appellate decision and referred the case back to the regional labour court. The court is 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 changing composition, the varying participation of the group members in the chats, and the use of a medium designed for the rapid transmission of statements.

Press Release 33/23 on BAG, 2 AZR 17/23 (24 August 2023)