In a one-to-one conversation with a colleague, an employee calls his boss a “son of a bitch” and explains that he wants to “cut off his head”. He relies on freedom of expression and confidentiality of the conversation. The employer quits without notice – rightly so?

The Hamm Regional Labor Court (LAG) ruled (file number 8 Sa 365/22) that slanderous, defamatory statements about superiors or colleagues, such as “son of a bitch” and characterized by considerable disregard for the person, whose head they wanted to “cut off”, entailed termination without notice can justify and is no longer covered by the fundamental right of freedom of expression. This also applies to a statement made in a face-to-face meeting at the workplace if, based on the circumstances and the content of the conversation, the employee cannot assume in the individual case that his statements will be classified and treated as confidential.

How was the case?

An employee who has been employed for around 10 years (unskilled worker, 45 years old) has already been admonished and reprimanded several times for his aggressive behavior. The last warning related to his immediate superior’s label as “asslicker” and his threat with “We can also go outside. I’ll find you anyway.” About half a year after receiving this warning, there was another incident that prompted the employer to give notice: the employee refused to follow instructions from his supervisor and also from the shift manager to do a specific job. During the dispute, the employee not only called both superiors “Polish mafia” and “bad people”, but later said several times during working hours to a colleague in the work hall that his direct superior was a “son of a bitch” and that he said “the cut off head”.

The colleague informed the shift supervisor and the employee was given notice of termination without notice and, alternatively, on time after his own hearing and the works council hearing. He complained, citing freedom of expression and the fact that he had had a confidential one-to-one conversation with a colleague and that his personal rights precluded dismissal.

The judgment

The judges agreed with the employer and declared the termination without notice to be effective. Such a title for a superior is a form of abusive criticism and a formal insult that is no longer covered by the fundamental right to freedom of expression. Here only the defamation of the other person and personal insult are in the foreground, the swear word only aims at disparaging the other person, regardless of the context. According to the judges, it could remain open whether it was really a threat of death or physical violence, since it was no longer protected abusive criticism in connection with “son of a bitch”, because “cutting off the head” always entails the right to physical Existence is denied and the particularly degrading type of killing mentioned involves a denial of human dignity.

The reasoning

In principle, statements in confidential one-to-one conversations in a particularly protected room or context – such as statements at the kitchen table at home within the family – can be subject to special confidentiality protection and then a termination can also be subject to general personality rights protected by the Basic Law, by privacy, be “locked”. However, such a protected expectation of confidentiality is not to be seen here. The statement was made to a colleague with whom the employee was not particularly close, and during working hours at the workplace and not in a closed environment such as a private meeting among colleagues or a confidential conversation in the break room. In addition, because of his statement, which can also be understood as a serious threat, the employee could not have assumed that a colleague would keep all this to himself.

Due to his relevant admonitions and warnings, there was a risk of repetition, the peace in the company was in danger and these were extreme statements, so that when weighing up the interests, the 10-year tenure with the company, the poorer job market prospects as an unskilled worker and the tendentially higher age of the employee were not before a effective termination without notice.

Attorney Dr. Alexandra Henkel is a specialist lawyer for labor law, business mediator and business coach.

(This article was first published on Tuesday, January 03, 2023.)