Termination after distasteful joke in WhatsApp group

Schleswig-Holstein Regional Labour Court ruling of August 19, 2025 – 1 Sa 104/25

In its judgment of August 19, 2025 (1 Sa 104/25), the Schleswig-Holstein Regional Labour Court ruled that the summary dismissals of an employee for a tasteless joke within a small, internal WhatsApp group were invalid due to the lack of good cause within the meaning of Section 626 (1) of the German Civil Code (BGB). During a break at work, the plaintiff employee had filmed a video containing a eulogy for a colleague who had allegedly died and distributed it in a WhatsApp group. Although the employee's statement in the WhatsApp group was considered distasteful, it was clearly not a serious disparagement, but rather a joke that had no external impact in this particular case. The subsequent addition of new facts as grounds for dismissal failed in this case because the employer's works council was not consulted on this matter. The alternative ordinary dismissals with notice were also socially unjustified due to the lack of a prior warning.

A. Facts of the case

The parties are in dispute over the validity of two extraordinary terminations without notice and, alternatively, ordinary terminations with notice of the plaintiff's employment relationship.

The plaintiff had been employed by the defendant in the logistics/patient transport department since February 1, 2018, and was a member of the UKSH factory fire brigade. The plaintiff's daily working hours are interrupted by a fixed break between 10:45 a.m. and 11:15 a.m. On July 21, 2024, during his fixed break (at 10:52 a.m.), the plaintiff, wearing the uniform of the plant fire department, in a hall and using the loudspeaker of an equipment trolley, gave a satirical "funeral speech" lasting just under two minutes about a colleague who had allegedly died, mentioning his name and accompanying it with the song "Ave Maria." The speech was filmed by a colleague. In fact, the colleague named in the speech was not dead. The plaintiff then posted the video during working hours in a WhatsApp group to which a total of five work colleagues belonged, including the colleague named in the speech. This was followed later by a picture with a preview of an obituary notice. The colleague named in the speech responded in th

The defendant's managing director became aware of the incident on October 4, 2024, and initiated an investigation into the matter. On October 9, 2024, the colleague named in the complaint confirmed that he had classified the video with the funeral speech and the image with the obituary notice as a joke. The plaintiff was heard on October 21, 2024, after an absence due to operational reasons. He described how similar jokes were common among colleagues in the WhatsApp group. In an email dated October 25, 2024, the defendant consulted the works council on its intention to terminate the plaintiff's employment relationship without notice, or alternatively with notice, due to his distasteful and inhumane behaviour in the WhatsApp group. The works council objected to the intended dismissals in a letter dated October 25, 2024. In a letter dated October 30, 2024, the defendant terminates the plaintiffs employment relationship without notice, alternatively with notice. The letter of termination was signed by the defen

The defendant considered the plaintiff's behaviour to be a serious breach of duty, disrupting industrial peace and constituting defamation. It further claimed that the plaintiff had moved the equipment trolley used for video recording from its designated position to the hall, thereby jeopardizing the operational readiness of the plant fire department.

The plaintiff denied having moved the equipment trolley. He pointed out that he had recorded the video during his break, that the WhatsApp group had a very limited number of recipients, and that the uploads during working hours had only taken a few seconds. He claimed that the recording had not been noticed by other employees of the defendant. He also complained about the failure to comply with the two-week period specified in Section 626 (2) of the German Civil Code (BGB), deficiencies in the works council hearing, and the lack of a power of attorney.

The Lübeck Labour Court (see judgment of March 26, 2025 - 6 Ca 2158/24) upheld the claim. It declared the extraordinary termination without notice and, alternatively, the ordinary termination with notice pronounced against the plaintiff to be invalid and ordered the defendant to continue his employment.

The defendant appealed against this judgment to the Schleswig-Holstein Regional Labour Court.

B. Reasons for the decision of the Schleswig-Holstein Regional Labour Court

The Regional Labour Court dismissed the appeal and confirmed the invalidity of all terminations and the plaintiff's right to continued employment.

First, the chamber denied the existence of good cause within the meaning of Section 626 (1) of the German Civil Code (BGB) for the extraordinary termination without notice on October 30, 2024. In doing so, it based its decision on the following facts, which it considered to be proven: The video in which the plaintiff gave a eulogy for his allegedly dead colleague was recorded during a break; the plaintiff used the equipment trolley and thus a piece of UKSH equipment for the recording; the video was distributed exclusively in a small WhatsApp group with a maximum of five colleagues; the recording was not viewed by any outside third parties; the plaintiff subsequently posted the video and the image of an obituary notice in the WhatsApp group during his working hours; the volume was moderate; the hall door was closed, as there was no evidence to the contrary from the defendant, who bore the burden of proof in this regard. The chamber expressly left open the question of whether the equipment trolley had been mov

In its legal assessment, the court affirmed that the plaintiff had violated his duty of consideration under Section 241 (2) of the German Civil Code (BGB), as a fictitious death notice was objectively likely to disrupt industrial peace and impair the social standing of the person concerned. The inaccurate message that someone had died was objectively likely to deeply unsettle the person concerned and could cause the other participants in the WhatsApp group to react in a similar way, thereby excluding the person concerned. In the chamber's view, the statement "You are dead to me" indicated that one no longer wanted to have anything to do with a person. At the same time, however, the chamber classified the behaviour as a recognizable " distasteful joke" and not as a denigration or devaluation of the colleague concerned. In particular, the death of the colleague concerned was not presented as desirable in the speech, so that the colleague was ultimately not denied either the right to exist or the value of livin

The defendant was not permitted to cite the possible repositioning of the equipment trolley as a separate breach of duty in the unfair dismissal proceedings. This was because it constituted a new, independently valid reason for dismissal (endangering the operational readiness of the plant fire department), which protected something qualitatively different from the accusation of disrupting industrial peace on which the dismissal was based. However, this additional accusation had not been communicated to the works council as a reason for dismissal during the hearing pursuant to Section 102 (1) of the Works Constitution Act (BetrVG). According to Section 102 (1) sentence 2 of the Works Constitution Act (BetrVG), the employer must only communicate to the works council those reasons which, in its subjective view, justify the dismissal and are decisive for its decision to dismiss. As a rule, the employer must describe the facts of the dismissal, stating the facts on which the decision to dismiss is based, in such

In the Chamber's view, uploading the video and obituary during the plaintiff's working hours did not constitute an additional breach of duty. Due to his work in patient transport, the plaintiff is not on duty continuously but is dependent on specific assignments or orders. The uploading of the video and obituary took only a few seconds in each case and did not specifically impair the plaintiff's work performance, as he was not on duty at the time. By uploading the video and obituary, which took only a few seconds, the plaintiff did not violate his duty to properly perform the work tasks assigned to him. Even the subsequent uploading of the obituary was no longer likely to disrupt industrial peace, as the colleague concerned had previously made it clear in the group that it was a joke, which was also understood as such by him. It was therefore not a separate breach of duty.

In weighing up the interests involved, the court denied the necessity and thus the proportionality of extraordinary termination without notice. Overall, the breach of duty committed by the plaintiff was not so serious as to justify extraordinary termination without notice and without prior warning. In view of the plaintiff's lack of intent to cause harm, the limited internal reach of the video, the plaintiff's six years of trouble-free employment, and the recognizable classification of the video as a "distasteful joke," a warning would have been the appropriate, milder measure. If the defendant had made it clear to the plaintiff by means of a warning that the video, even if it was meant as a joke, constituted a breach of his duties under the employment relationship, there would also be no indication that the plaintiff would repeat such behaviour. The Labour Court's affirmation of the failure to comply with the two-week limitation period under Section 626 (2) of the German Civil Code (BGB), the alleged defici

For the same reasons, the chamber also declared the further extraordinary termination without notice to be invalid. The ordinary terminations with notice, which were declared as a precautionary measure, were also socially unjustified. There were no behavioural reasons, as a warning would also have been required before declaring an ordinary termination for behavioural reasons. In the absence of an effective termination of the employment relationship, the Chamber finally affirmed the plaintiff's claim for continued employment in accordance with the case law of the Grand Senate of the Federal Labour Court.

C. Practical note and conclusion

Due to the specific circumstances of the case, the present decision is a decision in an individual case. Therefore, no definite conclusion can be drawn from the decision that a "distasteful joke" cannot justify effective termination without prior warning in other cases. Therefore, employees are still advised against such behaviour, even considering the present decision. Employers are advised to carefully examine each individual case to determine whether such a "distasteful joke" justifies immediate termination or whether a warning must be issued first.

Nevertheless, using this specific case as an example, the court clearly distinguishes between adding new reasons for termination and specifying or explaining reasons for termination already communicated to the works council during the hearing, based on generally applicable criteria. The decision thus makes it clear that a strict line must be drawn between permissible specification and impermissible subsequent submission of new grounds for dismissal. Employers are required to present all circumstances relevant to the decision to dismiss in a complete and orderly manner at the works council hearing in order to ensure that they can be used in subsequent proceedings. At the same time, the ruling gives employees the opportunity to specifically object in court that alleged reasons for dismissal are irrelevant due to the lack of proper participation by the works council. The decision thus once again underlines the high formal importance of the works council hearing and confirms that only the facts communicated to t