Labor law: can I make fun of my employer?

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To laugh at someone - or at someone? Caution should be exercised when joking about bosses

In Australia, an employee recently made fun of his bosses with a Hitler meme and was fired. He successfully struggled and was awarded $ 201,394 for lost earnings. What is the legal situation in Germany? How rough can I have fun with my employer - and when are the limits of good taste exceeded?  

First of all, the decisive factor is the framework in which you uttered the joke about your employer: in a private or professional context. "A statement, even if it is meant to be derisive or derogatory, remains something private in the private sphere and does not entitle the employer to shoot straight if he happens to find out about it," says the specialist lawyer for labor law and professor for German and international labor and business law, Daniel Benkert.  

If you make your mockery public, it can be inconvenient  

However, if you raise your ridicule in the public sphere - for example, by posting on social networks - it is crucial whether the statement influences the employment relationship and whether the reputation of the employer could be harmed as a result. For example, if you mention the employer in your Twitter profile, the addition "private here" does not protect you in case of doubt from possible consequences under labor law if you tweet something that makes your employer look bad. "This is behavior that the employer does not have to accept, ”says Benkert.  

Nevertheless, the limits are often very broad, as the case of a railroad employee shows: The 38-year-old, who was clearly visible on his Facebook page in uniform in front of a DB Regio AG train, had posted a picture of the Auschwitz extermination camp on Facebook . He wrote that Poland was ready to take in refugees. The railway thought the man's mail was unsustainable - and gave him notice.  

According to the man, the post was intended as a criticism of the Polish government. The photo comes from a Polish satirical magazine. The railroad's lawyer was not convinced by this argument: Because of his profession, a connection was made between the railroad and deportation to extermination camps - this would damage the rail's reputation. 

"The crucial point in this case is that it was clear to a third party which company the man was working for. As a result, the employer had to justifiably assume that the reputation of the company could be damaged by the employee's mail", says labor lawyer Benkert. 

It also depends on the general tone in the company  

Nevertheless, Heidelberg labor judges declared the man's dismissal to be ineffective - because he had worked as a train driver for the company for 14 years and never caused any problems. Such a photo does not justify his termination, according to the judges (judgment of February 19, 2016, Az. 6 Ca 190/15).  

Your judgment is the result of a weighing of interests: Here, the employer's interest in terminating the employment relationship is weighed against the interest of the employee in keeping the job. It also depends on the general tone in the company and the length of service. When it comes to a long-term employee, the employer has to endure a lot - at least if everything has always gone smoothly in the employment relationship. 

If you sit at home with friends having a barbecue and express yourself disparagingly about the employer, this has no relevance for the employment relationship. This also applies if you have lunch with colleagues and want to vent your anger. In a confidential conversation in a small group, one can assume that the content will not be carried further. "Even if one of the colleagues is chatting, then he has violated the trust you have placed in us - but from a legal point of view that would not fall on your feet for the time being. Even if this would put a heavy burden on the employment relationship," says Benkert. 

Regarding the question of how serious a statement may be, the freedom of expression enshrined in Article 5 of the Basic Law, which everyone enjoys, applies here as well. This also applies to operations. Here you have to be able to speak plainly and also be able to express critical criticism. The limit has been reached when the matter is no longer fiercely argued, but the main thing is to defame the boss.   

According to specialist lawyer Benkert, what is still appropriate is interpreted by German courts as "relatively generous in practice." A few years ago, the case of a division manager in a supermarket (judgment of January 20, 2011, Az. 11 Sa 353 / 10). The man reacted to accusations with "Yes, my leader" and received the dismissal. That was premature, decided the state labor court in Mainz at the time. The expulsion of the employee without prior warning was disproportionate, according to the judges. "Such judgments are natural somewhat of a life insurance policy for employees with a loose mouth, ”says Benkert.