Member Article

When employees post on Facebook while at work a conflict of interests arises: while the employee enjoys his leisure activity, the employer expects him to do his work uninterruptedly. In order to decide this conflict in his favour, the employer tends to react with employment law instruments, such as informal warnings, formal cautions and finally termination. German jurisdiction supports him in that.

Breach of contract when using social media in the workplace and its consequences

If an employer allows private use of the internet in the workplace without any restriction as regards content, this generally also includes the use of social media pursuant to German jurisdiction. However, if there are no company regulations regarding the use of social media in the workplace – either in the form of directions, a company agreement or employment contract clauses – the employee cannot assume that the employer will accept such use. In this respect the same principles are applicable as to private use of the internet and e-mail: while at work the employee is expected to work and not to be on the internet for private purposes. Anything else is a breach of contract that can be sanctioned. Yet German jurisdiction also acknowledges that many employers allow minor usage of the internet for private purposes. Thus it cannot be assumed that an employee is aware of the illegal nature of his actions. In such cases where there are no explicit company regulations a notice of termination must be preceded by a warning letter.

 

Company regulations regarding the use of social media in the workplace

 

In order to avoid conflicts, employers are best advised to establish internal regulations regarding the private use of the internet in the workplace, including social media . Employees are more likely to understand sanctions if they are previously informed about what they may and may not do. Plus, there will be no need for a previous warning letter to make the employee aware of his misconduct before giving notice of termination. However, as soon as the employer regulates whether the internet can be used for private purposes and to what extent, the works council has a right to co-determination (s 87, ss 1, no. 1 German Works Constitution Act). Therefore such regulations should always be jointly developed with the works council, preferably in form of a company agreement. Such agreement should not only include the legal limits of the use of social media, but also clear guidelines of conduct (e.g. labelling of internet posts as personal opinion in case of doubt).

 

Freedom of expression vs. duty of loyalty

 

However, the above must be clearly distinguished from the content of the information the employee publishes on the internet. Facebook posts – published either on or off duty - are generally protected by the freedom of expression (guaranteed by article 5 of the German Basic Law). But this basic right is limited by the right of personal honor. As part of the duty of protection (s 241 II German Civil Code) and consideration this legal assessment also takes effect in the employment relationship. Therefore the employer is not obliged to tolerate any insult, be it on the internet or elsewhere in public. If the insult has not been made during a confidential conversation among colleagues only, it can justify sanctions up to extraordinary termination. German jurisdiction includes many representative cases. Employees often express their anger about working conditions, wage levels or sanctions already put into action, e.g. warning letters.

 

In each case it has to be individually evaluated when the limit for giving notice of termination has been reached. There was a case, when a female employee liked one of her husband’s facebook posts in which he insulted her employer. The termination was finally dismissed as it was uncertain whether she herself or her husband – who also had the access information to her account – pressed the like-button. In another case the post could only be read by the employee’s so called “friends”. As none of them where his colleagues, the court dismissed the termination as it considered this remark to be covered by the freedom of expression. In yet another case there were some colleagues among the so called “friends”, so the court upheld the dismissal.

 

Summary

 

Social media continues to be focus of employment law. It can only be established on an individual basis if an employee may use social media in the workplace or not. It can also only be de decided on an individual basis if an insulting remark justifies a dismissal. At least the first issue can and should be jointly settled with the works council by a company regulation.