Loyalty is a secondary employee obligation
In addition to the primary obligations arising from the employment contract, the employer and employee also have secondary obligations. These do not necessarily have to be stipulated in the employment contract but may arise from the relationship of mutual trust between the employer and employee (Sections 241 (2), 242 of the German Civil Code (BGB)).
The duty of loyalty or fiduciary duty is an essential secondary obligation for employees and obliges employees not to harm the employer.
This obligation essentially only applies to work conduct and not to private conduct such as on social media. If an employee makes racist or anti-Semitic comments on social media in a private capacity, this generally has no consequences for the employment relationship.
Influential employees at companies with a tendency
The situation is different if an employee who holds an influential position at a so called company with a “tendency” posts racist or anti-Semitic content in a private capacity on social media: In this constellation, the employee’s conduct outside of work may well have an impact on the employment relationship.
Section 118 (1) sentence 1 of the Works Constitution Act (BetrVG) defines companies with a tendency as companies which directly and predominantly pursue political, religious, charitable, educational, scientific or artistic objectives or publishing or expressing opinions, such as newspaper publishers or radio stations.
Influential employees are employees of a company with a tendency who are directly involved in promoting the company’s specific tendency – such as responsible editors at media companies, for example. Such influential employees are not allowed to behave in conflict with the objectives of their employing company with a tendency, not even in a private capacity, if that harmed the interests of their employer.
Personal anti-Semitic posts as good cause for termination
An editor at a state owned German radio station called Deutsche Welle (DW) expressed critical opinions about Israel and its behavior towards Palestine on personal social media accounts for several years while working as a freelancer for DW. DW concluded an employment contract with this editor in 2021. The following year, DW learned of the editor’s critical comments from the press. Although the editor then deleted the critical comments, DW still terminated the employment relationship without notice. The editor then took legal action in response.
Different rules for influential employees
The editor won the legal dispute challenging the termination without notice before the labor court, but lost the appeal.
The Berlin-Brandenburg Higher Labor Court classified his comments on social media as anti-Semitic and deemed them a serious breach of his duties towards DW. The Higher Labor Court ruled that his statements justified the termination without notice because they had been publicly accessible for years and had damaged the reputation of DW.
As an influential employee, he had a duty to respect the fundamental objectives and values of DW. This included recognizing Israel’s right to exist and opposing anti-Semitism – even in a personal capacity. Because of his influential position, his freedom of opinion pursuant to Article 5 (1) sentence 1 of the German Constitution (GG) took second place to the freedom of the press on the part of DW pursuant to Article 5 (1) sentence 2 of the German Constitution (GG) (Berlin-Brandenburg Higher Labor Court, decision dated April 4, 2024, Ref. 5 Sa 894/23).
Inconsistent case law
However, in 2023, a different senate of the same Higher Labor Court ruled that the dismissal of an editor for anti-Semitic publications in an online magazine before the start of the employment relationship was invalid (decision dated June 28, 2023, Ref. 23 Sa 1107/22).
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Summary of the key facts:
- In general, when an employee expresses an opinion in the media in a personal capacity, this does not justify the termination of his employment.
- However, personal opinions expressed by an influential employee at a company with a tendency (such as a school, university, or radio station) may justify his dismissal if they violate their employer’s objectives and damage their reputation.
