22. October 2013
An employee who insults their employer on Facebook by calling them “anti-social” can be dismissed without notice. However, employers do not have free reins in such situations. Read more for the latest developments in the German case law.
Dismissed without notice
While employers may be justified in dismissing employees without notice who insult them on Facebook, they do not have free reins.
A case heard by a German court demonstrates the fine balance the judges must draw.
During a dispute over pay, an employee wrote the following on Facebook:
“I am going to be sick…such anti-social businessmen as these are hard to find: (how many more lies, [how many more] new employees will have wages which would be considered immoral under the law ”
When the author’s employer found out, the employee was dismissed without notice and also with notice. The employee claimed against his employer to stop the dismissal.
The lower court ruled in favour of the employee. The employer appealed to the Regional Employment Tribunal in Hessen.
Justification for dismissal
The court in Hessen found that calling an employer anti-social was an insult. As the statement was purely intended to vilify the employer, it was not protected by the right to free speech. The same is true for the phrase “I am going to be sick”, as this phrase was disrespectful to the employer (case ref.: 21 Sa 715/12).
Under German employment law, an employer may only dismiss an employee without notice if they have a “compelling reason” (§ 626 German Civil Code). The court ruled that the insult on Facebook was sufficient to be classed as a compelling reason.
However, the court held that in this case, the employer was not entitled to dismiss the employee without notice. The judges balanced the interests in the employer in firing the employee against the employee’s interests in keeping his position.
The court argued that the employee’s long term of service (28 years), the fact that it was the employee’s first breach of duty and the fact that he was disabled were all circumstances which meant that the employee’s interests in keeping his position prevailed.
Employees should think twice before posting insulting material about their employers on Facebook. In particular, employees should avoid expressing abusive criticism about their employers.
Employers should ensure that they pay careful consideration to whether, in the particular case, the employee’s interests in maintaining the employment relationship exceptionally outweigh their own interests in dismissing them without notice. Employers should therefore always consider all of the circumstances of the case and especially the reason for the insulting posts.
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Categories: Employment Law