A few clicks may be sufficient: An employee publicly posting hate campaigns against refugees must expect to be dismissed. Hate posts can lead to disturbance of harmony at the workplace, to the relationship of trust being shattered and to the reputation of a company being jeopardized. Employers should react consistently and promptly.
Xenophobic offences on the Internet: On Flame-throwers and "Civilization Seminars"
Previously, the case of a 17-year-old car manufacturer trainee from Austria caused a sensation in the media. Commenting on a photograph that had been posted on Facebook showing a refugee girl refreshing herself in water fountains of the fire-brigade, he commented with these words: "Flame-throwers would have been a better solution in this case". The trainee had disclosed his profession and, in doing so, the link to his employer in his Facebook profile. His employer dismissed him without notice.
In another case, an Austrian supermarket chain dismissed an employee after she had made a Facebook posting in response to a report about a fire in front of an initial reception facility that it would have been better if the fire had been "in" the building.
Xenophobic posts on Facebook also had serious consequences for an employee of the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF). On the Facebook site of BAMF, the man requested "civilization seminars for native Africans" on the grounds that their "sense of order only partially existed". The man lost his job.
Freedom of opinion as an asset protected by constitutional law
Freedom of expression is a valuable asset: Under Article 5 of the Federal Constitution, the right to freely express one's opinion is granted to everyone – also via social media like Facebook, LinkedIn, Twitter and similar ones.
However, the freedom of expression can be restricted by general laws and the right of personal honor (Article 5 (2) of the Federal Constitution). In employment relationships, these general laws are particularly the laws that serve to maintain the harmony at the workplace.
Under what circumstances do hate posts justify dismissal
Privately voiced xenophobic diatribes, however, no matter how malicious they are, are none of the employer's business. An exception to this principle must be made, however, if, through his conduct, the employee disturbs the harmony at the workplace or damages the employer's reputation, in particular, if a post can be linked to the employer. In the case of the trainee, the latter made it clearly identifiable on his Facebook wall that he worked for the car manufacturer. This is already enough to be able to make a connection to the employer who, in turn, can then take action at the employment law level.
If even the dividing line to punishable incitement of the people is overstepped, the only right reaction employer is dismissal (without notice). To dismiss an employee on grounds of his anti-refugee statement, it is not mandatory, however, for such statement to constitute a criminal offence. Instead, it suffices if the harmony at the workplace is disturbed by a xenophobia expression or if the relationship of trust to the employer is shattered. Although – in favor of employees – the fact that, as a general rule, a Facebook post can be accessed only by respective circle of friends there should be taken into account, Facebook posts nevertheless usually no longer have anything in common with a "group of regulars". Xenophobic postings are liable to disturb the harmony at the workplace precisely if there are business partners, customers or even colleagues among an employee's Facebook friends; in such case, they can justify the dismissal of the employee. This also applies to a person who adopts a foreign racist expression of opinion as his own, for example by clicking the "Like" button.
Two-week deadline: Employers have to act promptly
If the employer has become aware of a statement justifying dismissal and wishes to terminate for cause without notice, it has to give notice of termination for cause without notice within the statutory two-week deadline (§ 26 of the German Civil Code (BGB)). As a "preliminary step" prior to termination, the employer can alternatively issue a formal warning, in any case if it can be assumed that the employee will change his or her conduct and stop acting in this manner. In contrast, a warning is unnecessary if the employee had to expect that this kind of conduct would not be tolerated even in exceptional circumstances – which is likely to be assumed in the case of xenophobic utterances.
Facebook should delete hate posts
The German Federal Minister of Justice, Heiko Maas, SPD, speaks up for deletion by Facebook and other social networks of any criminally relevant and racist comments. At the invitation of the Federal Minister of Justice, a planned working group consisting of internet providers and civil society organisations is expected to be established. Recently, Facebook indicated that they were planning measures to restrict the dissemination of hate messages against refugees. Mark Zuckerberg re-confirmed this intention towards Angela Merkel in the context of a personal meeting. In addition, Facebook is seeking for partnership with Freiwillige Selbstkontrolle Multimedia (FSM), an association for voluntary self-control of multimedia service providers. Facebook is facing criticism because xenophobic comments reported by users often remain online. We can only hope that the talk of these announcements will be walked!