Sensitive subjects and industrial peace: Are there limits to freedom of speech?

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Sensitive subjects and industrial peace: Are there limits to freedom of speech?

Whether climate protection, corona protection measures or war – there is no lack sensitive subjects that can cause heated discussions at work. What boundaries are employers permitted to set?

For many employees, the workplace is also a place where they form and express opinions. As a rule, companies must tolerate political discussions. After all, the freedom of speech guaranteed by the Basic Law also applies in the workplace.

The boundaries of freedom of speech

The boundary begins where industrial peace is disrupted: Section 74 of the Works Constitution Act (BetrVG) states that employers have a legitimate interest in ensuring that employees treat each other with respect and work together without disruptions. As such, a productive workflow is endangered when a conversation among employees escalates. Or when colleagues are confronted with provocative topics which they do not wish to discuss. Employees cross the line when they make racist comments, as stated in Section 75 of the Works Constitution Act (BetrVG). Under certain circumstances, comments may even be regarded as incitement, insults or slander. In contrast, conversations concerning highly polarizing issues are permissible, provided that they do not take place at the cost of working time. In individual cases, it is essential to find a balance between the right to freedom of speech, the obligation of mutual respect arising from the employment relationship, and the employer’s legitimate interest in productive cooperation between all employees.

Consequences: from a clarifying discussion to termination

If employees disrupt the industrial peace by provoking colleagues or through hostile behavior, the employer is obliged to protect its employees and must intervene. The mildest solution consists of a clarifying discussion. However, HR managers may not completely prohibit the staff from expressing themselves. The employer has a fundamental duty to remain neutral towards both sides. However, the employer may demand that the employee refrain from making statements which disrupt the industrial peace in future. A warning or transfer to another workplace within the company is also an option provided the works council agrees to the transfer. In the worst case, the employer may terminate the employment relationship. This is only possible without a prior warning in especially serious cases, such as in the event of racist or anti-Semitic statements. These may also justify termination without notice. The action chosen always has to be proportionate and must serve to ensure the industrial peace in the future.

Choose the mildest solution

The question is: what response is proportionate when employers disagree with an opinion? The Saxony State Labor Court addressed this question in its decision dated February 24, 2022 (Ref: 2 Sa 453/20). A production employee had distributed leaflets at the factory gate without authorization, even though this was prohibited by company agreement unless there was an official reason. The employee was issued a warning as a consequence. The employee took legal action demanding the removal of the warning from his personnel file, arguing that it was inappropriate. The Judges at the Labor Court in Chemnitz reached a clear ruling: The employer must choose the mildest solution in reaction to a breach of duty, such as a reprimand or a warning. Employers are required to reprimand the breach of duty without immediately threatening to terminate the employment relationship. Employees are entitled to request that a warning be removed from their personnel file if it has been issued unjustly.

Private remains private – even in social media?

Outside working hours the rule is that private remains private. According to the Federal Labor Court, when employees make statements in a confidential conversation among work colleagues, they are entitled to expect that the contents of the conversation will not be disclosed to others. However, if the statements are disclosed, this does not generally have any consequences under labor law (Federal Labor Court ruling dated December 10, 2009, Ref: 2 AZR 534/08). Nevertheless, disputes arising because of opinions expressed on social networks frequently end up before the courts. When it comes to racist or xenophobic statements, for example, employees always face the risk of consequences under labor law if their social media profile enables a connection to their employer. This can easily happen if employees identify themselves as employees of the company in their LinkedIn profile, for example. In this case, termination of the employment relationship may be lawful if employees make comments that damage the company’s reputation or business, and violate an ancillary obligation from their employment contract as a consequence.

The Berlin-Brandenburg State Labor Court ruled on the question of whether companies can justify a termination with logs from private chats from messenger services such as WhatsApp. May these logs be used in action against unlawful dismissal? The specific case involved the termination of the technical manager of a non-profit organization which primarily focuses on providing refugee aid. The organization justified the termination on the grounds of highly derogatory and contemptuous statements regarding refugees and people working in refugee aid made in a WhatsApp chat.

Confidential WhatsApp messages as grounds for termination?

The Berlin-Brandenburg State Labor Court permitted the use of the statements made in the chat in court. However, as with the previous court instance, it also ruled that the termination was invalid: A breach of duty justifying termination had not occurred because the confidential communication in the chat was protected by general personal rights. The technical manager had used private mobile phones to communicate with very small group of people. In addition, the statements were clearly not intended to be seen by others but were considered to be confidential. The judges did not identify a lack of suitability for the job because the terminated plaintiff did not directly perform any aid work. Yet, in contrast to the lower court instance, the State Labor Court terminated the employment relationship at the request of the organization against severance pay. Section 9 of the German Employment Protection Act (KSchG) states that cooperation serving the interests of the company can no longer be expected.

Employers have a legitimate interest in ensuring that the company operates smoothly. At the same time, employees are also entitled to the freedom of speech in the workplace as guaranteed by the German Basic Law. Balancing individual rights is difficult in certain cases. Complex issues also arise when employees express their opinions on social media because it is often not possible to clearly distinguish between purely personal communication and statements regarding a person’s employer. Only statements of that nature are relevant under labor law. To prevent conflicts, managers and HR can clearly communicate the boundaries that the company sets. Social media guidelines also provide guidance regarding legally compliant interaction with colleagues, customers and competitors. When employees cross the line, employers need to orient their choice of consequences under labor law on the appropriate level of response.