Offending superiors on Facebook with emoticons does not automatically justify termination of the employment contract

On 22 June 2016 the Higher Labour Court of Baden-Wurttemberg (Landesarbeitsgericht Baden-Württemberg, docket number 1 Ca 290/15) ruled that referring to superiors with emoticons of animal heads – such as in this case a pig’s or a monkey’s head – in a conversation among employees on Facebook may be an insult, but was not sufficient reason to justify an extraordinary or ordinary termination of the employment contract.

The plaintiff, five other employees of the defendant and some other people were having an online discussion on a publicly accessible Facebook wall which was not the plaintiff’s. During this conversation, the plaintiff posted some comments describing one of his superiors as “fat” pig by using a pig-emoticon and describing another superior with a monkey-emoticon.  As a consequence, the defendant terminated the employment contract without notice and, alternatively, with notice. The plaintiff filed a dismissal protection claim which was successful before the local labour court and the Higher Labour Court of Baden-Wurttemberg.

In Germany an extraordinary termination without notice requires an important reason for the termination. Such a reason requires a reason justifying the termination itself and that after a balancing of interests the employer’s interest in ending the employment relationship prevails over the employee’s interest in continuing the relationship and a milder response to the employee’s failure is not reasonable.

Although the Higher Labour Court acknowledged that the “emoji comments” are an insult and therefore a significant breach of contract justifying the termination itself, the court found that the employer’s interest in ending the employment relationship did not prevail in this individual case. The court considered the special situation of a public conversation on Facebook where a dissemination and sharing of comments can hardly be controlled. However, the court argued in favour of the plaintiff that he did not call his superiors by name, but used a form of “insider language” only known by his colleagues. Furthermore, the court considered the plaintiff’s social facts such as that he is partially disabled, had worked for the employer for 16 years and is a part-time working father responsible for his one year old child. Thus, according to the court, it would have been sufficient to issue a warning to the plaintiff in order to avoid future breaches of his contractual duties. Therefore, the termination without notice was not valid. With the same considerations the court held that the ordinary termination was not valid either.