Termination due to Social Media posts

During working hours: Scrolling instead of working

Anyone who uses social media during working hours without permission violates their contractual obligations. This applies, at the very least, when work performance is no longer properly delivered due to media usage. Furthermore, employers can generally prohibit the use of social media in the workplace by exercising their right to issue instructions (Sec. 106 German Trade Regulation Act - GewO). This can be implemented through social media guidelines or individual directives. It is also possible to include a corresponding prohibition in employment contracts.

If a social media ban is in place, employees are not allowed to use the relevant platforms during working hours. Even simply viewing of photos and videos on Instagram or TikTok can result in a warning. If the behaviour is repeated, termination for conduct-related reasons may be considered. In any case, an individual assessment of interests must be conducted, weighing the employer's interest in terminating the employment relationship against the employee's interest in continuing it.

After work: Freedom of Expression with limits

Even outside working hours, social media posts can have legal consequences under employment law. Publicly criticising one's employer or damaging their reputation through one's behaviour may, under certain circumstances, lead to a warning or termination. While employees are generally free to express their opinions under Art. 5 of the German Basic Law (GG), meaning employers cannot generally prohibit private statements (on social media), employees are also obligated under their contractual duty of loyalty (Sec. 241 para. 2 German Civil Code - BGB) to avoid causing (reputational) harm to their employer.

Defamatory criticism and formal insults directed at the employer are not protected by the right to freedom of expression and are therefore inherently a breach of duty. Such behaviour may even justify extraordinary termination without notice, according to the Federal Labour Court (e.g., in cases of gross insults directed at the employer in a chat group, see Federal Labour Court, judgment of 24 August 2023 - 2 AZR 17/23). Even justified and factual criticism may, in individual cases, be impermissible if the consequences of the statement are particularly severe for the employer.

Conclusion

It is well known that the internet is not a lawless space. However, the far-reaching consequences of social media use under employment law may come as a surprise to some users. Employers are advised to establish clear behavioural guidelines and communicate them to employees in the interest of all parties. Employees, on the other hand, should be particularly mindful of not violating their contractual obligations when using social media.