Smileys are widely used in e-mails, text messages or on t-shirts, and are usually an expression of happiness but sometimes also of sorrow and other less attractive emotions. Regardless of where they are used, smileys have a meaning (my smartphone, for example, lets me take my pick of a staggering 43 variations, from Broken Heart to Yawn, and Eyes Rolling to Talk to the Hand) and it is exactly this meaning which led to the recent defeat of one employer in the German Labour Court.
The employer signed a letter of reference for an employee and inserted a smiley with the corners of its mouth turned down :( into the first letter of his name. The employee filed a lawsuit about this “negative smiley” because this was not the usual signature of the employer and its grimace therefore had to be considered an unwarranted negative statement about him.
The claim was brought under Section 109 para. 2 German Industrial Code, which says that a letter of reference may not contain anything which makes a statement about the employee other than the one superficially apparent from the external form or wording. Such a differing statement was to be found in the smiley with the turned-down mouth in the employer’s signature, said the claimant.
The defendant denied that the signature was an expression of disrespect. He argued that he always signed his name with a smiley in the first “G” of his name, even on his ID card. Personal taste is indeed a mysterious thing. One might even say that this tells you more about the employer than his employee, but never mind for now.
The Labour Court in Kiel (file no.: 5 Ca 80 b/13) determined that the employer’s statement concerning his signature with a smiley was true, but that was not however the end of the story. The small but critical difference was that his usual signature contained a happy smiley :), not the sullen version on the reference.
Through this change in the signature on the letter of reference, an entirely different impression was created. The Court agreed that the smiley with a turned-down month represented a negative statement about the employee. The signature was not the one the employer usually used in legal relations.
The judges also determined that smileys or the like should not generally be used in letters of reference in Germany. This case was an exception only because the defendant employer always signed its name with a smiley. A great shame in a way – much enjoyment could have been had (in a sad employment-lawyer sort of way) from extended judicial debate about the respective merits of different smileys in the workplace – where Angry is short-hand for a disciplinary invitation, Huh? means please re-submit your grievance in terms I can even remotely understand and Eyes Rolling means now I have read your grievance, please report to HR with your coat and bag.
In the meantime, the parties in the Kiel case resolved the dispute at the appeal stage. Big Hugs, suggests my smartphone. :) :)