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Is making a defamatory claim about a colleague on WhatsApp a reason for dismissal in Germany?

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Kliemt.HR Lawyers, the first port of call in employment law for top-class and future-proof advice.
An employee who spread untrue defamatory rumours about a colleague on WhatsApp was legally dismissed according to a ruling from the Baden-Württemberg Labour Court.

The question in this case (judgment of 14 March 2019 – 17 Sa 52/18) was whether an employer is entitled to invoke an extraordinary termination if an employee disseminates an incorrect assertion to another colleague via WhatsApp, which is likely to impair the reputation of a colleague significantly. The Baden-Württemberg Regional Labour Court (‘LAG’) has clearly affirmed this and given some clarifications relating to these types of situations.

The case

The employee  (a commercial employee) visited a bar in the evening two days after the beginning of her employment relationship and was informed by acquaintances in conversation that the father of the managing director of her employer (who was also employed by him) was allegedly a convicted rapist. This was merely a rumour and not factually correct. The employee did not learn the untruth of the allegation until later, in connection with the dismissal. Shortly after the conversation in the bar, the employee informed a colleague of the rumour about the alleged rape on WhatsApp. She used a private chat in which only she and her colleague were involved. The colleague shared these allegations with the managing director and his father. The employer then terminated the employment relationship with the employee who had spread the rumour on WhatsApp extraordinarily as well as, in the alternative, ordinarily (alternatively). The employee then filed an unfair dismissal complaint (only challenging the extraordinary dismissal), arguing, among other things, that she was concerned when she heard about the rumour and trusted that the chat with her colleague would remain confidential. The Stuttgart Labour Court (‘ArbG’) upheld the employee’s action for dismissal protection, but the LAG Baden-Württemberg dismissed the action.

The decision

In its decision, the LAG Baden-Württemberg clarifies, with reference to the jurisdiction of the Federal Labour Court (‘BAG’), that there is a reason for extraordinary dismissal, inter alia, in the case of gross insults directed at the employer or its representatives or of work colleagues, that constitute a considerable violation of the person concerned’s reputation. The same applies if an employee deliberately makes untrue factual claims about his or her employer and/or superiors or colleagues, in particular if the statements constitute defamation. The court then considered the present facts in the light of the elements of the offence of defamation (s186 of the German Criminal Code, StGB) and came to the conclusion that the employee’s conduct had fulfilled the conditions in the present case. The statement that the colleague was a convicted rapist was a defamatory allegation that was likely to discredit the individual concerned in the public eye. The employee was aware of this.

Moreover, s186 StGB did not require the perpetrator to have been aware the alleged fact was untrue. Nor did the plaintiff’s belief in the confidentiality of the chat history on WhatsApp protect her from punishment. In addition, the court made it clear that the statements were not covered by the freedom of opinion protected by Article 5(1) of the Basic Law. In this context, an employee can express criticism of his or her employer, even in exaggerated form. However, the fundamental right of freedom of opinion is not granted without restrictions and finds its limits where the personal reputation of the person concerned is affected.

In weighing the interests in this individual case, the court came to the conclusion that the extraordinary dismissal was justified. The statement made in the WhatsApp chat was an extremely serious accusation. In addition, the employee could not rely on a well-earned protection of the status quo resulting from a long period of service because the employment relationship had only existed for a few days. To the employee’s disadvantage, the court stated it should also be taken into account that she also spread other untrue rumours in the course of the chat (including that the colleague had committed insurance fraud). The employee would have had to check whether the allegation was factually accurate before reporting it as fact.

Practical note

The ruling makes it clear that employees cannot ‘hide’ behind social media such as WhatsApp when it comes to defamatory and untrue statements about employers or colleagues. An employee cannot rely on freedom of opinion where statements constitute a criminal offence because freedom of opinion is not unrestricted. The employee must check whether rumours about his or her employer or colleague are true before they are disseminated to third parties. This particularly applies to serious allegations such as those described in this case.

Alexander Steven
Kliemt.HR Lawyers