Employment Law

Dismissal without notice for “inappropriate” Facebook photos

Posting “inappropriate” photos on Facebook can lead to employees being dismissed. But what are the rules on dismissal without notice in such cases? This question is currently going through the German courts.

Placing inappropriate photos on Facebook can lead to dismissal without notice © kbuntu - Fotolia

Placing inappropriate photos on Facebook can lead to dismissal without notice © kbuntu – Fotolia

Dismissal without notice

A German court recently heard a case involving a police officer employed by the Hamburg police department (case ref.: 27 Ca 207/13).

The officer placed a photograph of a skull and crossbones symbol wearing a police cap on his Facebook profile. He had taken the photograph whilst on duty in front of a Jewish school.

When his employer discovered the photograph, the officer was dismissed without notice.

The police office was unwilling to accept the dismissal and decided to sue his employer. He argued that the photograph was a joke and that it had nothing to do with the SS’s infamous Death’s Head Units. He also admitted that his behaviour had been unreasonable.

Wrongful dismissal

The employment tribunal in Hamburg allowed the police officer’s claim. It held that the employer had no justifiable reason to fire the police officer as the skull and crossbones did not necessarily imply a right-wing attitude.

Moreover the employer failed to sufficiently demonstrate or even prove that the officer placed the photograph on Facebook due to right-wing beliefs. The fact that a Jewish school was in the background, did not in itself lead to such a conclusion.

It is questionable whether this judgment will remain legally binding. Following publication of the written judgment, the employer will have one month in order to lodge an appeal. According to NDR.de the employer is considering whether to raise an appeal; it argues that in the past the police officer has attracted attention due to his “unacceptable” and “malicious” behaviour towards citizens with migration backgrounds.

Advice on Facebook photos

Facebook users should be careful when placing photographs on their profiles, or when commenting on their employers.

Under German employment law, derogatory remarks about bosses or even colleagues can lead to a dismissal without notice or warning. This may even be the case where an employee simply clicks the “like” button.

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Nicola Simon ist Fachanwältin für Arbeitsrecht. Sie hat sich sowohl auf die Beratung der Arbeitnehmer, als auch der Arbeitgeber und Betriebsräte spezialisiert. Seit 2008 ist sie Referentin beim Medien- und Gründerzentrum.

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