For many people WhatsApp is part of the working day, even where the company never intended it for work. Two questions come up again and again: what may an employer do with the messages, and what can an employee write there without putting their job at risk? Four decisions of German courts show where the limits lie. This article reflects the position as of 16 January 2024.
Data protection: access to the address book
When it is used, WhatsApp regularly reads the address book of the device. The people stored in it often have not agreed to their data being passed on. On a company phone this also affects the contacts of customers and business partners, and it is one of the main criticisms of the service.
Employment law: private use of company devices
Where private use of a company phone is permitted, the position becomes more difficult. The employer may not simply access content without infringing the personality rights of its employees. This becomes sensitive above all when the employer learns of messages that could justify a dismissal. The courts have decided several such cases.
On sick leave, but at a party
A nursing assistant was scheduled for the late shift over a weekend and had reported sick for those days. On Saturday evening she attended a party. Photos of it appeared on the organiser’s website and in her WhatsApp status. The employer dismissed her without notice.
The Arbeitsgericht Siegburg (labour court) dismissed her claim against the dismissal (judgment of 16.12.2022, 5 Ca 1200/22). It saw in the pictures a deception about the illness and held the summary dismissal justified, because the employee had destroyed her employer’s trust.
A false claim about a colleague
An employee sent a female colleague a WhatsApp message claiming that a colleague had been convicted of rape. The claim was false. The employer dismissed her without notice while she was still in her probationary period.
The Landesarbeitsgericht Baden-Württemberg (regional labour court) upheld the dismissal (judgment of 14.03.2019, 17 Sa 52/18). It asked whether such a claim reaches beyond the private sphere and disturbs peace in the workplace. A prior warning was not required.
Insults in a private chat group
An employee had made insulting, sexist and dehumanising remarks about superiors and other staff in a WhatsApp group with colleagues. A member of the group passed the messages on to the employer, who dismissed him without notice.
The Landesarbeitsgericht Niedersachsen held the dismissal invalid (judgment of 19.12.2022, 15 Sa 286/22). The group had seven members who had been friends for many years, and in the court’s view their interest in confidentiality outweighed the employer’s protection against defamation. The employer could nevertheless use the messages that had been passed on: the court did not find a bar on using the evidence.
The Bundesarbeitsgericht (Federal Labour Court) set this judgment aside on 24.08.2023 and referred the case back (2 AZR 17/23). Anyone who expresses themselves in such an insulting way, inciting violence, in a group of this size can, according to that decision, rely on a legitimate expectation of confidentiality only in exceptional cases, and must show why they were entitled to it.
Company phone: reviewing private messages
An employer wanted to find evidence for a summary dismissal on an employee’s company phone. Private use of the device was permitted. The employer read the employee’s WhatsApp messages.
The Arbeitsgericht Mannheim held this unlawful and awarded the employee damages of 7,500 euros for a data protection breach (judgment of 20.05.2021, 14 Ca 135/20). The basis for the claim is Art. 82(1) GDPR.
What the cases have in common
Messages between colleagues can justify a dismissal if they deceive about an illness, belittle third parties or disturb peace in the workplace. Whether the employer may use them depends on how they reached it. A message passed on by a member of the group is one thing; the employer reading a company phone that may be used privately is another.
How staff in Germany are paid and supported day to day is covered under German Payroll & HR.
Sources: Arbeitsgericht Siegburg, judgment of 16.12.2022, 5 Ca 1200/22; Landesarbeitsgericht Baden-Württemberg, judgment of 14.03.2019, 17 Sa 52/18; Landesarbeitsgericht Niedersachsen, judgment of 19.12.2022, 15 Sa 286/22; Bundesarbeitsgericht, judgment of 24.08.2023, 2 AZR 17/23; Arbeitsgericht Mannheim, judgment of 20.05.2021, 14 Ca 135/20; Art. 82 GDPR.