The Labour Court of Lower Saxony ruled in favour of the employee in this case because the statements were made in a private chat, holding that confidentiality in the private sphere outweighed the interest of the defamed and insulted colleagues.

The Federal Court reformed the decision, stating that the dismissal was justified under those circumstances. It ruled that such comments, although made in a private chat room, could not be covered by confidentiality, which depends on the content of the messages and the size and composition of the chat group.

The decision overcomes its previous jurisprudence on the use of private communications by the employer for disciplinary purposes. In the past, the Court had ruled that, in the case of confidential communications, an employee could trust that their statements would not be disclosed publicly. The employer had to demonstrate why confidentiality must be breached to justify dismissal.

With this new decision, the burden of proof reverses if the statements are sufficiently severe. This means, the burden is on the employee to explain why they should be able to rely on the confidentiality of the statements.

Employers who become aware of such comments can consider this new jurisprudential orientation that makes intervening easier and less risky while still respecting employees' privacy.