Abstract
Under German law, the fundamental right to freedom of opinion as an expression of human personality and a basic condition for a liberal democracy does not end at the factory gate, but is also available to employees in the employment relationship. However, the employees' right to freedom of expression must be appropriately balanced with the interests of the employer and other employees. This article describes the relevant principles that have developed in German labour law over time on this topic and, in addition to the constitutional background, also deals in detail with the trends in labour court case law. It focuses on political statements, criticism of the employer and working conditions, insults and racist statements made inside and outside the workplace, as well as on social media. In particular, the article attempts to analyse the importance of the institutional framework, including the existence of a constitutional court, for a solid protection of freedom of expression in the employment context.
Keywords
Introduction
Free speech is a direct expression of the human personality and is closely linked to the basic idea of individual self-determination. The freedom to express one's opinion is ‘a piece of morally necessary air’ for the individual. 1 At the same time, free speech is a basic condition for a liberal democracy. 2 It is not without reason that freedom of opinion is described in Article 11 of the French Declaration of Human Rights of 1789 as ‘un des droits les plus précieux de l'homme’. In the oft-quoted words of U.S. judge Benjamin Cardozo, freedom of expression is ‘the matrix, the indispensable condition, of nearly every other form of freedom’. 3 Free speech is therefore not only highly valued in the tradition of Enlightenment social philosophy, 4 but has also long been protected as a fundamental and human right in numerous liberal democracies, as well as in European and international legal sources. This applies to the First Amendment of the U.S. Constitution, Article 11 of the European Charter of Fundamental Rights, Article 10 of the European Convention on Human Rights, Article 19 of the Covenant on Civil and Political Rights and Article 19 of the Universal Declaration of Human Rights. This also applies not least to German law, where the German Constitution guarantees freedom of expression (free speech) as a fundamental right according to Article 5(1) sentence 1 of the Basic Law (Grundgesetz (GG)). At the same time, according to Article 5(2) GG, freedom of expression is limited by the provisions of general laws, the statutory provisions for the protection of minors and the right to personal honour, whereby the ‘general laws’ are of the greatest importance. However, the Federal Constitutional Court (Bundesverfassungsgericht ( BVerfG)) has decided from the outset that the limitations of free speech must be interpreted in the light of the special value of Article 5(1) sentence 1 GG, which speaks in favour of the fundamental permissibility of an opinion, and that the limitations must therefore be limited in turn (the so-called ‘doctrine of mutual effect’ (‘Wechselwirkungslehre’)). 5
The great importance of free speech for the personal development of the individual as well as for the functioning of the democratic order has always led to the question of whether and to what extent this freedom should also be protected in working life. The question is all the more pressing as the freedom of expression in democratic systems today appears to be threatened less by the state than by social powers. Considering the personal and economic dependence of the employee on the employer, it becomes clear that the right to free speech would be considerably impaired if the employer were authorised to respond to critical and unwelcome expressions of opinion by employees with disciplinary measures, including dismissal. The restrictions on free speech would be even more serious if the employer had the right to sanction even expressions of opinion by employees outside of the employment relationship.
The basic problem of disapproving or even insulting comments made by employees, which the employer uses as grounds for dismissal, is anything but new, but has been part of the human condition in working life from the very beginning (certainly not only in Germany). 6 Accordingly, this topic has been discussed in German law for a long time. 7 A basic consensus has emerged in case law and academia that, figuratively speaking, the right to free speech does not end at the factory gate. On the contrary, employees can also invoke freedom of speech within employment relationships. The problems do not concern the basic principle, which is beyond dispute in German law, but rather the application of the principles in specific cases.
Recent German case law shows that the issue is still of considerable importance and that the continued existence of the employment relationship is at stake for the employees concerned. For example, the Federal Labour Court (Bundesarbeitsgericht (BAG)) confirmed the dismissal without notice of an employee who made insulting and inhumane comments about colleagues in a private chat group consisting of seven participants. 8 In contrast, a local labour court declared the dismissal without notice of a mining technologist in response to critical statements made about working conditions at a works meeting to be invalid. 9 The same principles were applied in both cases, although the results differed depending on the specific facts of the case. In addition, the case of footballer Anwar El Ghazi, who was dismissed without notice by Bundesliga club FSV Mainz 05 in November 2023 after refusing to apologise for a social media post accusing Israel of genocide in Gaza and proclaiming: ‘From the river to the sea, Palestine will be free’, attracted a great deal of media attention. 10
Institutional framework
The problem of employers jeopardising employees’ freedom of expression was recognised in German law during the Weimar Republic and addressed at the constitutional level. On the one hand, Article 118(1) sentence 1 of the Weimar Constitution (Weimarer Verfassung (WRV)) provided that every German should have the right to express his opinion freely by word, writing, print, image or in any other way within the limits of the general laws. On the other hand, Article 118(1) sentence 2 WRV, which was initiated by Hugo Sinzheimer, 11 stipulated that no employment relationship should prevent employees from exercising this right and that no one should discriminate against them if they made use of this right. This reflects the progressive attitude of German politics in the period following the November Revolution of 1918. However, Article 118 WRV was often interpreted restrictively by the Reich Labour Court (RAG) when it came to trade union or communist agitation. 12 In contrast, the RAG ruled more strongly in favour of those affected if the statements made by employees had a National Socialist background, citing Article 118 WRV. 13 In the academic literature of the time, the scope of the protection afforded by Article 118(1) sentence 2 WRV was discussed, but the provision was understood rather narrowly. 14 From all of this, it can be concluded that even a constitutional guarantee of freedom of expression in the employment relationship is no guarantee of effective protection of this right if the courts do not sufficiently take into account the constitutional provisions in their case law.
The Basic Law and the related case law reflect this phenomenon, so to speak, in reverse. As mentioned above, Article 5(1) sentence 1 GG guarantees the fundamental right to freedom of expression. However, unlike Article 118(1) sentence 2 WRV, this fundamental right does not contain a provision that expressly addresses the protection of freedom of expression in the employment context. Nevertheless, the BAG 15 recognised in its first relevant decision that the fundamental right to freedom of expression also applies in the employment relationship. In a similar vein, the BVerfG also spoke out in favour of a general indirect effect of fundamental rights in private law at an early stage, 16 and later decided that it would be incompatible with the fundamental meaning of Article 5(1) sentence 1 GG if the freedom of political expression were to be kept completely out of the area of the workplace, which is of essential importance to many citizens. 17 The BAG has even expressly pointed out that no reverse conclusion should be drawn from the amended wording of Article 5(1) sentence 1 GG compared to Article 118(1) sentence 2 WRV. 18 It is true that in the first decades after the Basic Law came into force, the BAG on the one hand, and the BVerfG on the other, had different views on the legal ‘construction’ of the horizontal effect of fundamental rights in private law. While the BAG originally argued in favour of a direct effect of at least certain fundamental rights (including freedom of expression) vis-à-vis the employer, the BVerfG took the view from the outset that fundamental rights only have an indirect effect on private law via the general clauses of civil law (so-called ‘radiating effect’ (‘Ausstrahlungswirkung’)). It was not until the 1980s that the BAG adopted the view of the BVerfG. 19
In any case, the question of how the effect of fundamental rights can be legally explained is of only secondary importance for determining the specific scope of free speech protection in the employment relationship. Rather, the decisive factor is the weight that the courts ultimately attach to the freedom of expression of employees in the process of weighing up the various interests affected. In this balancing process, it is positive for the employee side that it is not only the BAG that decides on this, but that the question of the fundamental status of freedom of expression in the German legal system is decided by the BVerfG as a court that is specifically charged with the authoritative interpretation of the constitution and thus also of German fundamental rights. Experience shows that courts with jurisdiction confined to a particular field of law tend to interpret that field broadly, partly to expand their own decision-making authority. In the conflict between the employee's freedom of expression and the employer's interest in countering what it considers to be the negative consequences of employees’ statements for the operation of the firm, a broad understanding of free speech ultimately benefits the employee.
Finally, the institutional framework conditions include the fact that freedom of expression is not regularly the subject of labour law disputes in isolation, but plays a role in the context of dismissal protection proceedings and is therefore embedded in the structures of German dismissal protection law. If the employer has terminated the employment relationship without notice (extraordinary dismissal), it must be assessed whether there is good cause for such a termination. The answer to this question is in turn influenced by whether the employee can invoke free speech protection for specific behaviour. The same applies in the event that the employer has only terminated the relationship with notice (ordinary dismissal). If the Dismissal Protection Act (Kündigungsschutzgesetz (KSchG)) is applicable, 20 there must be a so-called behavioural reason for the validity of a dismissal based on an employee's statement. Whether such a reason exists, in turn, essentially depends on the significance of free speech in this context. In both constellations, it is ultimately a question of whether the employee has breached a duty arising from the employment relationship by making the statement. The scope of freedom of expression plays a decisive role here, because a statement protected by this fundamental right cannot be used as grounds for dismissal. 21
However, this rule cannot be ‘reversed’. For example, a statement that is not covered by the freedom of expression does not automatically justify dismissal. Rather, an employee may also be protected under the principles of dismissal law for reasons that have nothing to do with free speech, e.g., due to a long period of employment without any complaints, to such an extent that a dismissal is invalid even if the employee cannot successfully invoke the fundamental right of freedom of expression. There are therefore two levels for weighing up the conflicting interests: the first level concerns the employee's breach of duty as such, while the second level concerns the lawfulness of the employer's sanction.
Political statements and criticism of labour conditions: towards a more liberal approach
In recent decades, the German labour courts have had to deal with a large number of cases in which employers have issued extraordinary dismissals or ordinary dismissals due to statements made by employees or corresponding activities.
Even if each case has an individual character, two groups of cases can be identified in which case law has liberalised the standards for assessing the effectiveness of dismissals over time. These are, on the one hand, political statements and, on the other, criticism of the working conditions or the behaviour of the employer or superiors. However, another special group of cases, namely, whistleblowing, will not be discussed in more detail here because the Directive (EU) 2019/1937 and its transposition into German law through the Whistleblower Protection Act (Hinweisgeberschutzgesetz (HinSchG)) now provide for an independent legal regime that no longer focuses on the protection of freedom of expression, but rather on the improved enforcement of applicable law. 22
Statements with political intent
In older decisions concerning politically motivated statements made by employees, the Federal Labour Court (BAG) adopted a comparatively restrictive stance, resulting in a more pronounced limitation of freedom of expression. It is true that, as far as can be seen, there is no decision according to which a dismissal (in the general private sector) was deemed effective solely because the employee concerned expressed a certain political opinion. 23 Moreover, as mentioned above, the BAG acknowledged from the start that key fundamental rights, including freedom of expression, also apply to private law relationships such as employment contracts, thereby creating a favourable initial position for employees. 24 At the same time, however, the BAG had originally developed principles that set strict limits to the freedom of expression of employees in the employment relationship.
On the one hand, the BAG initially counted the ‘basic rules governing the employment relationship’ very unspecifically among the ‘general laws’ within the meaning of Article 5(2) GG as limits to freedom of expression. 25 On the other hand, considerable weight was given to the idea of keeping peace in the workplace, in the sense of the ‘undisturbed operational solidarity of all employees’ (‘Betriebsfrieden’). 26 For example, the BAG originally allowed a mere threat to workplace peace to suffice, 27 and thus did not require any demonstrable disturbance of workplace peace, for example in the sense that numerous colleagues had complained about a (political) statement made by an employee. This view was reinforced by the fact that ‘provocative party political activities’ were deemed to create a presumption that peace in the workplace was jeopardised. 28 In addition, the employer was included in the protection, and a threat to workplace peace was derived solely from the fact that the employee had (repeatedly) violated the employer's order to refrain from any party political activity in the firm. 29 The employer was therefore entitled to declare the establishment to be a zone free of party political statements and to sanction violations of this as a disturbance of workplace peace with a dismissal. In fact, the decision concerned a case that, at least from today's perspective at first glance, seems rather harmless: a communist-oriented employee had slipped some communist party ballot papers between the pay packets of colleagues during working hours, accusing the democratic parties of ‘stealing the bread from the workers’ table’, which is why they should vote for the Communist Party of Germany (Kommunistische Partei Deutschlands (KPD)). The BAG classified this behaviour as deliberate party political influencing of the other employees in the establishment, and also referred to the fact that the dismissed employee had already discussed political issues at a works meeting 18 months previously and had caused unrest among the workforce by announcing (unfounded) wage cuts. 30 All of this was qualified by the BAG as a serious threat to workplace peace, which justified dismissal. 31 Whether the other employees actually felt disturbed by the employee's party political activities, however, cannot be inferred from the facts stated in the judgement. 32 The decision was apparently based on the underlying notion that companies should remain free from any form of politics, so as not to risk their function as sites of economic value creation within the existing social order. In other words, companies should remain free from politics, as political disputes among the workforce would cause disruption. It appears that employees were regarded by the BAG at the time as basically apolitical, and therefore were to be shielded from confrontation with political issues. 33
Furthermore, in the early 1950s, against the backdrop of systemic competition with the German Democratic Republic, there were numerous court decisions in which the fundamental right to freedom of expression in the employment relationship was emphasised in connection with statements and activities of left-wing (communist) employees, but in which the limits of this fundamental right were also emphasised, and the effectiveness of the dismissal was confirmed in many cases. 34 In addition, the BAG ruled that the distribution of a flyer by a communist-oriented employee containing militant criticism of his own employer in the context of a general election campaign, and completely separate from the employment relationship, was sufficient grounds for ordinary dismissal, 35 without taking into account that this interfered with the specific protection of communication via the press.
The first move towards a more liberal interpretation began in the 1970s and 1980s. In this respect, there was initially an increasing number of first instance decisions that were apparently made by a new generation of judges and which express a more liberal underlying attitude. 36 Furthermore, in these years the BAG apparently used for the last time the empty formula that freedom of expression should find its limit in the ‘basic rules of the employment relationship’. 37 Instead, more recent decisions refer to the legal obligation of both contracting parties to show mutual consideration for the interests of the other contracting party (duty of loyalty) according to Section 241(2) Civil Code (Bürgerliches Gesetzbuch (BGB)), 38 which has a clearer content, even if it requires concretisation in individual cases. Finally, the BAG has emphasised that the employment relationship must be directly affected. 39 In particular, workplace peace (or operational procedures) must be actually disturbed 40 for a dismissal to be upheld in such cases. A mere threat to workplace peace due to the making of a political statement, considered sufficient in previous decisions, is apparently no longer sufficient. General statements also do not suffice for the BAG. Rather, the disturbance of workplace peace must manifest itself in individual, identifiable circumstances in order to constitute grounds for dismissal. 41
In the 1980s, the BAG dealt for the last time with ‘left-wing’ political statements as grounds for dismissal, as far as can be seen. Two cases concerned badges that employees wore in the workplace before the 1980 general election and in which they expressed their political views and, in particular, their opposition to a very conservative candidate for Chancellor. 42 The BAG differentiated according to the size of the badges in order to determine whether there was a specific disturbance of workplace peace: If the badge was only 3–5 cm in size, the firm's operations would not normally be specifically disturbed and a dismissal would therefore be invalid. 43 If, on the other hand, the badge was 12–15 cm in size, the BAG assumed that there existed a permanent challenge to other employees making a political statement and affirmed that there would be a disturbance of workplace peace because the other employees would be impaired in their right not to be constantly confronted with political issues in the workplace. 44 It was considered sufficient that only a few employees (three in the specific case) actually took offence, 45 which has been rightly criticised in academic literature. 46 In a further judgment, the BAG continued its line that only a concrete disturbance of the employment relationship justifies a dismissal, ruling that the candidacy of an employee of the state employment administration for the German Communist Party (Deutsche Kommunistische Partei (DKP)) for a local election was not sufficient grounds for dismissal. 47
Since the 1980s, as far as can be seen, there have been no further decisions in labour court practice on dismissals for the making of left-wing political statements, which indicates changing political attitudes and preferences in the German workforce. It is therefore difficult to assess how the courts would judge this type of case today. Remarkably, statements made by employees in support of the terrorist attacks on 9/11 resulted in different rulings by two regional labour courts as to the validity of subsequent dismissals by the employers. 48 It is also noteworthy that the BAG expressly ruled in a case – unrelated to general political issues – that the disturbance of workplace peace does not in itself justify dismissal, and is only relevant to dismissal if it is preceded by a breach of duty by the employee. 49 However, the BAG has maintained that the mere disturbance of workplace peace as a result of a breach of duty is to be distinguished from the disturbance of work processes and can constitute a reason for dismissal, 50 although it has been asserted in academia that workplace peace, in the sense of harmony in the establishment, 51 should not be recognised at all as a normative concept in individual employment law. 52
A more protective trend in respect of the freedom of expression of employees also results from the case law of the BVerfG with regard to the interpretation of ambivalent statements. In one specific case, a trainee had published an article in a vocational school magazine in which he had not clearly distanced himself from violent protests linked to the massive social conflict in Germany surrounding the peaceful use of nuclear power. The employer then refused to take on the trainee as an employee, citing his potential propensity for violence. The BAG interpreted the article to mean that the trainee was in favour of the use of violence under certain circumstances, and therefore declared the employer's refusal to employ the trainee to be lawful. 53 The BVerfG ruled that the right to freedom of expression would not be violated by the refusal to hire the trainee if the trainee had actually advocated for violence in the workplace. 54 In the court's opinion, however, the statements made in the article were not clearly to be understood as meaning that the trainee had actually endorsed violence as a means of resolving workplace conflicts. 55 The BVerfG based this on the young age of the trainee and the tendency of young people to hold radical views. On the other hand, there is also the notable argument that a person who can expect to be judged negatively with regard to future behaviour on the basis of statements made will restrain themselves, which in turn will hinder freedom of expression. In essence, the BVerfG is thus advocating a kind of ‘intimidation theory’, according to which the employer's expected future negative reactions to statements made by employees will result in them refraining from exercising their right to free speech in order to avoid triggering these negative reactions, which in turn impairs the substance of freedom of expression, namely, the freedom to decide whether and which opinions one wishes to express.
It should be noted that, depending on the specific function, stricter rules apply to the freedom of expression of members of the public service with regard to political statements and activities in order to avoid giving the public the impression of bias and a lack of neutrality in the performance of official duties. 56 Restrictions are also recognised for ‘tendency enterprises’ (‘Tendenzunternehmen’), which include political parties, media companies and trade unions. 57 Finally, special principles also apply to employees in ecclesiastical and church-affiliated charitable and educational organisations.
Negative statements made without political intent
The second important group of cases concerns negative comments made about working conditions, the employer, superiors, colleagues or customers. These statements typically lack any political context 58 and usually result from everyday workplace tensions and personal conflicts.
To avoid excessively restricting employees’ freedom of expression, the BAG has considered moderate criticism by employees of working conditions and the persons responsible for them (employers and superiors) to be covered by free speech in principle and therefore not sufficient grounds for dismissal, although the limits of freedom of expression were then again drawn quite narrowly in the specific case in question. 59 In later decisions, the BAG has expressly extended this to polemical and exaggerated criticism, which is also protected by freedom of expression and does not constitute a breach of duty, even if it is made in public. 60 In this regard, the BAG has expressly referred to the BVerfG, which has long advocated for a correspondingly broad concept of the permissibility of statements in public opinion campaigns in its case law. 61 The same applies to the view emphasised by the BVerfG in its more recent rulings to the effect that freedom of expression serves in particular to protect criticism of power, 62 which was immediately taken up by the labour courts. 63 Taken together, these points underscore how the existence of an independent constitutional court dedicated to safeguarding fundamental freedoms positively influences the protection of free speech within employment relationships.
In contrast, deliberately false factual claims are excluded from the scope of protection of freedom of opinion from the outset, among other things because they cannot contribute to the formation of public opinion intended by Article 5(1) sentence 1 GG. 64 Therefore, defamation in respect of the employer or other employees, i.e., the making of false factual claims, can justify dismissal. 65 However, a statement must not be viewed in isolation and prematurely categorised as a false factual claim. Rather, following the case law of the BVerfG, 66 the BAG has ruled that the context of a statement must be carefully considered in order to do justice to the importance of freedom of expression. In one specific case, an employee had stated in a YouTube video that there were no skilled workers available in the company, which was deemed to be a false assertion by the regional labour court. 67 In the view of the BAG, however, the statement was to be classified as criticism of deficits in the area of occupational safety and thus as a statement subject to the protection of Article 5(1) sentence 1 GG, which was not sufficient grounds for dismissal. 68 Contrary to the opinion of the regional labour court, 69 the BAG also did not categorise the description of a superior as an ‘underexposed hater of women and foreigners’ as an inaccurate statement of fact, but rather as an evaluation generally covered by freedom of expression. 70 Furthermore, utterances that combine factual assertions and opinions also enjoy protection of free speech as a whole. 71 The BAG thus achieves better protection for employees through a generous interpretation of alleged (untrue) factual statements as mere opinions.
Defamatory and other insulting remarks, which have long existed in working life, must be distinguished from permissible criticism on the part of the employee. It is therefore no coincidence that the oldest documented decisions of the industrial tribunals, the forerunners of the labour courts, (also) deal with insults. 72 From 1891 to 1969, the Industrial Code (Gewerbeordnung (GewO)) even contained an explicit provision according to which workers could be dismissed without notice if they grossly insulted against the employer or his representatives, or family members of the employer or his representatives. 73 In detail, a twofold division has emerged in case law in this respect. Firstly, there are insults that are in principle still protected by freedom of expression, and where a balance must be struck between free speech on the one hand and the interests of the employer on the other in order to determine the scope of the duty of consideration in the specific case at hand. 74 The exact content and form of the statement, as well as the occasion and accompanying circumstances, play a decisive role here. 75 Secondly, there are disparaging statements that impinge on the human dignity of others or are to be categorised as abusive criticism or formal insults. 76 The special feature of these groups of cases developed by the BVerfG, 77 which can hardly be distinguished from one another but overlap, is that the statements are no longer a matter of an argument relating to the issue and aim solely to offend, degrade, and dehumanise the other person. From a legal point of view, once a statement is classified as abusive criticism, no further balancing of interests is required. Such a statement is no longer covered by freedom of expression, and the employee's behaviour therefore constitutes a breach of the contractual duty to loyalty. 78
However, due to the far-reaching legal consequences, great caution is required when categorising a statement as an abusive criticism without context, for the sake of freedom of expression. 79 For example, the BVerfG did not classify the distribution of a letter by an employee in the establishment in which a named plant manager was accused of, among other things, ‘squeezing employees like lemons’ as abusive criticism. Instead, it required a balancing of interests, whereby it accepted the decision of the regional labour court to consider the ordinary dismissal to be valid. 80 Furthermore, in contrast to the regional labour court, 81 in the above-mentioned case, the BAG also categorised strong criticism of a superior (‘underexposed hater of women and foreigners’) not as abusive criticism, but merely as excessive. 82 Furthermore, the BAG's judgment on the question of whether a statement is offensive at all is often more employee-friendly than that of the regional labour courts. In contrast to the regional labour court, 83 the BAG ruled that the description of parts of the workforce as a ‘brown mob’ on a trade union intranet page was still covered by freedom of expression. 84 This is a far cry from the previous position of the RAG, according to which an employee holding up a sign which read ‘Lohnraub’ (‘wage theft’) in front of the factory gate at lunchtime (due to the 6% pay cut introduced as part of arbitration proceedings) represented a gross insult to the employer, which should justify extraordinary dismissal. 85
Even if an employee's statement qualifies as a breach of the duty to loyalty, a dismissal based on this may still be invalid because a second balancing of interests is required for reasons of dismissal protection law. For example, despite a serious offence, immediate dismissal may be disproportionate in the case of a long, undisturbed employment relationship, and the employer may instead only be entitled to issue a warning. 86 Conversely, one single gross insult may be so serious that the balance of interests is in favour of the employer, allowing at least ordinary dismissal. 87
When systematising the reasons why insults constitute a legitimate reason for terminating an employment relationship, a distinction can be made between personal (contractual) and operational (economic) aspects. 88 From a contractual perspective, the point is that every employment contract relies on a minimum level of mutual trust in the loyalty of the other party to the contract, which is undermined when an employee insults the employer or superiors. In smaller firms in particular, it is also unreasonable for an employer to continue working with an employee who has seriously offended them. From an economic point of view, the insulting of superiors or colleagues is a matter of undermining employee loyalty, one of the prerequisites for company productivity, because it makes it more difficult for other employees to continue working with the offender. In addition, the insulting of an employer or superiors in the presence of other employees undermines the authority of the employer, which is indispensable for the proper management of the firm. Last but not least, the insulting of customers by an employee can lead to a loss of business reputation if it is not addressed with appropriate disciplinary measures.
Racist and hate speech inside and outside the establishment
Since the 1990s, German labour courts have had to rule on an increasing number of dismissals in the context of racist, xenophobic or anti-Semitic statements made by employees. These statements have ranged from the content of xenophobic leaflets 89 and disgusting ‘jokes’ 90 to the most horrific fantasies of extermination. 91 They have also included the trivialisation 92 or even denial 93 of the Nazi mass murder of the Jews. The general tendency of the BVerfG 94 and the BAG 95 courts is to respond decisively to openly and aggressively displayed xenophobia and to consider dismissals without notice to be lawful in principle. This approach can also be found in lower courts case law. 96 However, there is a general consensus that right-wing extremism and xenophobia are not in themselves grounds for dismissal. 97 In principle, employees are not contractually obliged to have a positive attitude towards foreigners, human rights and basic democratic principles. However, if racist views are expressed in the employment relationship, it is no longer just a question of assessing an attitude, but rather of its destructive effects and the employer's right to defend itself against it. In this context, some argue that such statements disturb workplace peace. More specifically, the idea is that no employer should accept the behaviour of an employee who deliberately stirs up hatred within the workforce through their statements and denies other employees the right to be equal human beings. 98 As employers are obliged under both anti-discrimination law 99 and works constitution law 100 to protect their employees from such verbal attacks, it is only logical that they can also resort to dismissal. As soon as such statements made within the firm become public, reputational damage becomes a concern, if the employer does not take action against employees who clearly express themselves in an inhumane manner. In some cases, the courts attempt to ascertain whether there is an entrenched basic attitude behind the statements or whether it is just a case of a one-off mistake. If it is the latter, a formal warning may be sufficient to signal to employees that such statements will not be tolerated in the workplace. 101 Academic literature criticises both sides of the argument. On the one hand, the courts are criticised for being too rigorous in their standards and not focusing enough on the language that is commonly used in the relevant establishment. 102 On the other hand, some courts are criticised for being too lenient in cases of right-wing extremist statements. 103
In any case, it must be determined whether a statement that appears racist at first glance actually offends the human dignity of others. If, for example, a foreign worker replies to a superior's reproaches with the phrase: ‘I’m not a Negro’, then such a statement does not necessarily indicate that he endorses discrimination against black people. Rather, it may simply mean that he does not wish to be treated as inferior to others. 104 In contrast, comparing working conditions with the horrors of the Nazi extermination camps is completely unacceptable, and can justify dismissal. 105 However, it cannot simply be assumed that an employee who has produced a bizarre video, in which the infamous entrance gate to Auschwitz can also be seen for a moment, has the intention of comparing his employer's company with a Nazi extermination camp. 106
Hate speech by employees is a particular problem if it is expressed outside the firm. In this respect, the general principle is that the employer is not entitled to respond to purely private misconduct with a dismissal. 107 The private sphere of the employee and the sphere of the employment relationship are, in principle, separate. The situation changes if the statement relates to the employment relationship or can easily be linked to the employer. This may be the case, for example, if the employee himself refers to the fact that he works for a particular employer at an off-duty event at which he makes racist remarks. It is not sufficient if the link to the employer is made solely by third parties or the media. 108 By contrast, in the increasingly frequent cases of dehumanising comments made on social media, courts have found it sufficient if the employee also states which firm they work for. 109 To avoid subjecting all aspects of an employee's private life to employer discipline, only those statements that clearly link the employee to the employer and are recognisable as such by the broader public can justify dismissal. Merely being known within the employee's immediate personal circle is not enough.
Protection of privacy (‘confidentiality principle’)
Over several decades, case law has developed the principle that defamatory statements by an employee may not justify dismissal under certain exceptional circumstances - specifically, when these statements are made in confidence and only come to the employer's attention due to a breach of confidentiality. 110 According to the BAG, the reason for restricting the employer's right of dismissal is that neither the relationship of trust nor the workplace peace are impacted by the statement itself, but rather by the unexpected breach of confidentiality. A more convincing argument, however, is that an employee who criticises an employer or superiors confidentially is not openly defying company orders or challenging the employer's authority. Furthermore, the BAG refers to the established case law of the BVerfG, according to which certain close communication relationships enjoy immunity from criminal liability for insults. 111 This means that a prison inmate may not be sanctioned for insulting his guards in a vile manner in a letter sent to close family members. The BVerfG justifies this by invoking the general right to personality, which is protected by Articles 1(1) and 2(1) GG, and the need for a private sphere where one can speak freely, without fear of sanction. The problem with the BAG's approach is that the scope of the BVerfG's case law is limited to very close personal relationships. In contrast, the BAG extends this protection to general collegial relationships in the workplace, thereby defining the area in which an employer or superiors may be insulted without dismissal far more broadly than the BVerfG. In an older decision, albeit concerning the dismissal of a whistleblower rather than the person insulting others, the court argued that experience shows that, in a circle of colleagues after work, people gossip about other colleagues in a relaxed atmosphere, relying on a tacit understanding that such remarks remain confidential. 112 In fact, in the world of work, there is a social phenomenon that sometimes involves belittling those who are absent in order to strengthen solidarity within a group of people present. 113 However, it remains doubtful whether such a social code is in widespread use and, above all, whether it deserves normative recognition. Furthermore, the scope of protection of freedom of expression under Article 5(1) sentence 1 GG has shifted increasingly to the detriment of the protection of honour in recent decades, particularly under the influence of the BVerfG. Unlike in the past, the confidentiality principle therefore only applies from the outset, if at all, in cases of gross insults and defamation, while minor verbal slurs are often still considered protected by freedom of expression regardless of whether they were made openly or in a confidential circle.
With the increasing use of social media (Facebook, WhatsApp, etc.), labour courts have had to address the question of whether offensive statements made in these media fall under the confidentiality principle, preventing employers from using them as grounds for dismissal. 114 The local and regional courts are divided on this issue. While some courts refuse to apply the confidentiality principle at all 115 or only in the case of very small groups, 116 other courts assume that the entire private sphere of social networks is to be classified as confidential, even if there may be users or even hundreds of ‘friends’ who have access to the relevant offensive statements. 117 In its first decision on the issue of confidentiality in a group chat, the BAG rejected the confidentiality principle, even though the group consisted of only seven work colleagues. The BAG argued that one cannot expect confidentiality when making extremely aggressive and inhumane statements, thus concluding that the employee did not deserve protection. 118 The BAG therefore assumes an interaction between the content of the statement and the expectation of confidentiality. The more extreme the defamation and disparagement of others, the less likely it is that the employee can trust that his statement will not be repeated. The confidentiality principle is therefore no longer seen in absolute terms, but relative to the content of the statement. 119 In other words, the BAG denies protection of an employee's expectation of confidentiality in respect of statements made among colleagues if they engage in the most severe insults against third parties, thereby demonstrating a profound lack of respect for others – especially people working in the same establishment.
Summary
The case law of the German courts on free speech in the employment relationship can be summarised as follows: over time, there has been an increasing liberalisation under the influence of constitutionally protected freedom of expression. The decisions of the BVerfG have played an important role in this development, which underlines the particular importance of an independent constitutional court for the protection of fundamental rights in the employment relationship. As a result, employees are protected when making statements that constitute a dispute on the merits, even if they sharply criticise the employer and internal conditions. Statements of this kind may not be used as grounds for dismissal. Severe insults directed at the employer, superiors or colleagues, however, can justify dismissal. Still, under general principles of dismissal protection law, the effectiveness of such dismissals must be determined by weighing all relevant interests in each individual case. Hate speech is not covered by freedom of expression and regularly justifies dismissal if it relates to the employment relationship. Anyone who agitates against other employees in the establishment or makes racists statements about foreigners and other minorities must expect to be effectively dismissed. According to the BAG, confidential statements made among colleagues receive greater protection than statements openly addressed to the employer or a supervisor. However, if the statements made in respect of another are of a massively derogatory and contemptuous nature, the confidentiality argument loses its force, meaning that dismissal is also permissible in these cases. Even though employers are not required to monitor every employee statement for social acceptability or to impose sanctions in each instance, employers must not tolerate behaviour that incites hate within the firm. In this regard, John Rawls’ principle for a just constitution of a free society applies: the freedom of the intolerant may be restricted to protect the equal freedom of everyone. 120
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
