In a ruling dated November 15, 2017, the Mainz Labour Court upheld an action for unfair dismissal brought by four employees of the city of Worms (Ref.: 4 Ca 1240/17, 4 Ca 1241/17, 4 Ca 1242/17, 4 Ca 1243/17).
The city had dismissed the employees without notice because they had exchanged xenophobic images via a private WhatsApp group.

Six employees – one WhatsApp group

The four employees worked for the Worms public order office and the city’s enforcement service.
In their free time, they exchanged xenophobic images in a small private WhatsApp group on their personal smartphones.
The group consisted of six members and was called “the sovereigns”.
After the city found out about the messages, it dismissed all those involved without notice.
All those involved then took legal action against the dismissal before the Mainz Labor Court.

No termination after comments in WhatsApp group

The court ruled that the dismissals were invalid.
The decisive factor was that the pictures were only exchanged on the employees’ private smartphones and that the group was relatively small with only six participants.
However, the labor court considered it possible in principle that participation in such a chat constitutes a serious breach of duty and could even justify extraordinary termination of the employment relationship.
But not in this specific case, because the four employees could trust that the content of their conversation would never be leaked.

Confidentiality of the word weighs heavily

With this ruling, the Mainz Labor Court follows the established case law of the Federal Labor Court on the confidentiality of words (BAG, ruling of December 10, 2009 – 2 AZR 534/08).
According to this, gross insults of the employer can justify termination without notice.
However, this does not apply if the comments were made in a confidential conversation between colleagues.

However, the circumstances under which defamatory or defamatory statements were made about superiors and/or colleagues must be taken into account in the legal assessment.
If this occurred in confidential conversations between colleagues, then they may not justify a termination of the employment relationship without further ado […] The employee may regularly rely on the fact that his statements would not be made public during such conversations.
He does not have to expect that they will disturb the peace within the company and put a strain on the relationship of trust with the employer.

Statements in public social media can very well justify dismissal

However, the situation is different for comments made on public social media.
If racist or xenophobic comments are made on Facebook, for example, the employee may well face dismissal – and depending on the individual case, dismissal without notice.