How to deal with political extremism in the workplace?

Freedom of expression in labor law

Freedom of expression (Art. 5 I GG) is a valuable right: In Germany, everyone is entitled to freely express their opinion, particularly their political opinion!

This applies both at work and in a private context. Therefore, employees are permitted to express their political opinion even during working hours, and even if their employer does not like the employee’s opinions. In view of this, political statements are not generally justified grounds for dismissal, although exceptions may apply to ideological enterprises (such as a denominational charitable or educational institution) and the public sector.

The boundaries of freedom of expression

Nevertheless, general laws such as the provisions of criminal law impose certain limits on the freedom of expression. Incitement of masses is a criminal offense and is particularly relevant when it comes to politically extremist utterances.

For example, anyone who publicly condones, advocates or justifies atrocities, such as those by Hamas, at demonstrations or on social media may face prosecution.

Effects on the employment relationship?

Yet, are employers permitted to warn or dismiss employees who publicly “celebrate” the atrocities committed by Hamas at work or outside of work, and who (may) make themselves liable to prosecution by doing so?

Yes. Naturally, this always depends on the specific case.

On the one hand, this applies to incidents within the company environment. Political agitation can cause massive disruptions to company peace, especially among multinational workforces with different religious beliefs. For example, if anti-Semitic agitation and endorsing terrorism disrupts work processes by causing riots and suchlike, the instigator may receive a warning, be transferred or even be dismissed (without notice).

Political agitation in a private context can also have an impact on an employment relationship. Employees must consider their employer’s interests even during their free time in the event that the employee’s unlawful behavior would also affect the employer.

In particular, politically extreme, unlawful statements in (private) social media in a work-related context (e.g. on Facebook, Instagram), and also on other channels, can justify measures under employment law.

This is because statements like these have a significantly greater range than utterances made in a small private group.

Is termination always possible?

Companies intending to dismiss employees for unlawful political statements always have to weigh up the pros and cons. Even in such cases, it is essential to determine the most lenient and likely successful solution provided by labor law to prevent damage to the employer, while also making employees consistently aware of their misconduct.

Specifically, this means that labor law generally requires a warning even in the case of extreme political agitation of any kind if the warning can be expected to bring about a change of behavior. When it comes to truly intractable extremists where there is little chance of them changing their behavior, immediate dismissal (without notice) also becomes an option, and even dismissal on suspicion is justifiable.

The works council can demand termination

In addition to the previous options, the works council may also intervene when political extremism occurs among the workforce: Section 104 of the Works Constitution Act (BetrVG) entitles the works council to demand transfer or dismissal if colleagues cause disruptions within the company.

For example, racist remarks which repeatedly and seriously disrupt the company peace are grounds for the works council to issue a demand of this nature. The works council may even go so far as to enforce this in court. In view of this, employers are advised to give the matter thorough consideration!