This question has been occupying German employment lawyers for some time: Are social media posts by employees that are detrimental to business and often perceived as "private" a reason for dismissal? The German Federal Labor Court had to deal with such a case for the first time on 31 July 2014: May an employer justify a summary dismissal (without notice) by the fact that an employee made statements detrimental to the undertaking via Web 2.0?

Objective Criticism Generally Permitted, False Allegations Not

The Court states that an employee may not knowingly make false allegations about business circumstances that are detrimental to business and disseminate them or have them disseminated via digital media. Objective criticism of the business circumstances is permitted, however. The distinction between these is made on the basis of the content and the context of the statements. Applying these principles, the Federal Labor Court – unlike the courts of the previous instances – considered the termination without notice of the employment relationship of a candidate for the office of member of the election committee owing to statements allegedly detrimental to business invalid.

Details on the Case

The employer produces packaging. At its establishment, at which many skilled workers are employed, a works meeting for the purpose of electing an electoral board for the envisaged election of a works council took place on 10 February 2012 at the invitation of the trade union ver.di. The claimant was a candidate for the election committee. The meeting took a chaotic course. As both parties to the action understand the situation, a valid election of the claimant did not come about. Two weeks later, ver.di filed an application with the labor court for an election committee to be appointed. In the application, it again proposed the claimant as one of its members.

The Bone of Contention:  A Critical YouTube Video

On one of the following days, the claimant made a declaration in a video recording produced by ver.di stating that there were "problems" at the establishment. Individual machines lacked safety precautions. One could "almost claim" that no machine was "100 percent equipped". The problem was that there were "no specialists" and that there was "no 100 percent command of the machines". The video was posted on the Internet and could be seen on YouTube. The claimant also posted it on Facebook. Against this background, the employer terminated the employment relationship without notice on 15 March 2012.

Decision of Federal Labor Court Surprising

According to the Federal Labour Court, the summary dismissal (without notice) is invalid due to the absence of good cause. It was recognizable that the statements in the video were targeted at illustrating why the claimant considered the formation of a works council useful. The claimant did not intend to claim, however, that the defendant mainly employed unskilled workers. The decision is surprising because the employee (knowingly) disseminated obviously false information. It will result only from a more detailed analysis of the grounds whether and to what extent the Federal Labor Court actually included the particularities regarding dissemination of facts via Web 2.0 in its assessment.

For the time being, it remains to be seen whether the Court established general principles that can be transferred to other cases in this context.