Employment law measures are only permissible in the event of a breach of contractual obligations. If an employee uses company resources during working hours to create or distribute sexualised deepfakes, or commits sexual harassment at company events, this generally constitutes a serious breach of duty.
Purely private behaviour only becomes relevant to the employer if there is a specific link to the employment relationship, for example through:
- Disruption to colleagues
- Disruption of workplace harmony
- Damage to the company’s reputation
- a significant loss of trust
In the absence of such a connection, private conduct generally remains free from sanctions.
If an employee creates sexualised deepfakes on their private device after work, this is initially a matter of their private life and is not relevant under employment law. As long as nothing is published and there is no connection to the employment relationship, there is generally no breach of duty.
Relevance under employment law only arises where there is a specific connection to the workplace, for example where colleagues are affected or content is disseminated in a professional context. Thus, unsolicited pornographic messages via messaging services or sexually suggestive content in work-related groups may constitute grounds for dismissal. A careful examination of the individual case is always decisive. In such messenger groups, the assessment and evaluation depend on the confidentiality and accessibility of the communication. In close private relationships based on trust, there is a stronger protection of privacy. In larger groups, however, or in the case of offensive or sexually suggestive content, this protection generally does not apply.
If an employer becomes aware of sexualised deepfakes relating to the employment relationship, they must immediately take appropriate measures to protect those affected and to maintain harmony in the workplace.
These include, in particular:
- Warning
- Transfer
- Dismissal
- preventive protective measures within the workplace
- Measures under Section 12(3) of the General Equal Treatment Act (AGG)
The works council may also request the removal or transfer of an employee under Section 104 of the Works Constitution Act (BetrVG).
Conclusion
Even privately shared sexual deepfakes can be relevant under employment law if there is a connection to the employment relationship. In such cases, measures ranging up to summary dismissal may be considered, often without a prior warning. The employer may even be under a duty to act. Purely private behaviour generally remains unpunished as long as there are no operational implications. A careful assessment of each individual case is always crucial, taking into account proportionality and data protection limits.
Further information on this topic can be found here: https://www.haufe.de/personal/arbeitsrecht/sexualisierte-deepfakes-im-arbeitsverhaeltnis_76_683400.html
Key points in brief
- Intervention under employment law is only permissible if the employee’s private conduct has a sufficient connection to the employment relationship
- The employer must take appropriate measures to protect the personal rights of those affected – depending on the severity, a written warning, transfer or dismissal may be considered
- Extraordinary dismissal under Section 626(1) of the German Civil Code (BGB) is possible if milder measures are insufficient and the continuation of the employment relationship is unreasonable; a formal warning ( ) is not strictly required in cases of serious breaches of duty
