Statements in a confidential WhatsApp chat as grounds for dismissal?

Thursday, 11.11.2021

The Berlin-Brandenburg Regional Labour Court (Landesarbeitsgericht Berlin-Brandenburg) dealt with the dismissal of the technical manager of a non-profit association (Verein) in connection with a private WhatsApp chat.

The plaintiff had defended himself in court against the termination of the association. The association supports refugees. Its members include the local district and various cities and municipalities. Many volunteers support the work of the association.

Degrading remarks towards refugees

From another dismissal case, the association knew about a WhatsApp chat between the plaintiff and two other employees of the association. In the chat, the technical manager made degrading comments about refugees and disparaging comments about the volunteers. This was also reported by various media. As a result, the association dismissed the plaintiff.


Confidential chats are protected by the right to privacy

Like the Labour Court, the Regional Labour Court ruled that the dismissal was invalid. The chat histories that had become public could be used in court. However, the plaintiff could not be accused of a sufficient breach of duty. The confidential statements in the chat were covered by the right of personality of the technical manager. Only three employees were involved in the chat and the statements were to remain within the chat group. If the comments had been public in the first place, the court might have upheld the dismissal.


Plaintiff still suitable as technical manager

In the court’s view, the plaintiff was still suitable for his job as technical manager despite the chat becoming public. In doing so, the court focused primarily on the fact that he did not look after refugees himself. From the statements in the chat alone, it could not be deduced that the man was not sufficiently loyal to the constitution for public service.


Termination by the court despite invalid dismissal

Despite the invalidity of the dismissal, the plaintiff could not enforce his continued employment with the association. At the request of the association, the court itself terminated the employment relationship. In return, the association had to pay the plaintiff severance pay. The court had this option exceptionally because the plaintiff was a senior employee. In the eyes of the court, the association would no longer be credible vis-à-vis refugees if the plaintiff continued to work there. Furthermore, the association could also have problems recruiting volunteers.


Appeal allowed

The Regional Labour Court allowed the appeal to the Federal Labour Court. The Federal Labour Court therefore has the final say in this case.

LAG, Urteil vom 19.07.2021 – 21 Sa 1291/20