Dealing with conspiracy theorists under German employment law

Particularly in the last months, conspiracy theorists have been making headlines. The Corona pandemic has shown that this is a phenomenon with considerable impact. Therefore, dubious movements and their followers who spread untruths and absurd theories are now also becoming more important in employment law counselling. Companies are afraid of reputation damages and trouble within the company, if their employees are associated with certain movements (e.g. “Querdenker” and “QAnon”). Consequently, the question of how to deal with supporters of such movements under German employment law arises even more often. When can a warning or dismissal be issued?

Ban of political badges

Originally, it was political badges that attracted the attention of employers and labor courts. Around 30 years ago, the Federal Labor Court prohibited „anti-nuclear power badges” (1 AZR 694/79) and “anti-Strauss (German politician) badges” (2 AZR 620/80) at school or at work. Even a „peace dove badge“ could be prohibited at a military facility (5 Sa 240/86). However, all of these decisions only concerned the workplace and are certainly outdated in view of social developments. 

Employee’s constitutional rights also apply at the workplace

The employee’s constitutional rights also apply at the workplace, which is why the employer is limited in his right to issue instructions. The employee’s right to own personality and freedom of speech are constitutional values of significant importance and must be respected by the employer. In case of doubt the employee’s rights to freedom prevail, so that the employer is obliged to tolerate political activity.

Off-duty conduct

Employees are free in their leisure time activities and are not obliged to live a “proper life”. This applies above all to political activities. However, the employer will be allowed to intervene in off-duty conduct if his reasonable interest is endangered (e.g. employee damages the employer’s reputation, violates a duty of loyalty). In order to be able to react to off-duty political conduct, it must in any case have an employment connection, such as naming of the employer in the social media profile or appearance in company uniform. 

Right-wingers and racists

In the past it was mainly right-wingers and racists against whom employers wanted to take action. Also labor courts usually take a hard line against these views. If an employee discriminates against colleagues due to their ethnics, usually an ordinary dismissal is justified. But cases in which employees reveal right-wing opinions outside the workplace are more difficult. But even in these cases a dismissal is not excluded in case there is a connection to the workplace. If for example an employee of an integration-related profession plays music from the right-wing scene in his free time, a dismissal is possible (14 Sa 157/08). Employees can also be effectively dismissed in case they publish right-wing, racist and xenophobic opinions on Facebook, if their employer can be identified from their profile.

Even stricter in public service sector: An increased duty of loyalty applies, which obliges allegiance to the German constitution. Police officers sympathizing with or apparently belonging to the “Reichsbürger” scene can be removed from duty immediately. The dismissal of a teacher spreading conspiracy theories via his private YouTube channel was also effective (60 Ca 7170/18). Same applies to a public sector employee, who called for participation in a demonstration that could be understood as an incitement to riot (2 AZR 372/11). However, mere NPD (party that pursues anti-constitutional aims) membership does nut suffice for a dismissal even in public service sector.

Dealing with conspiracy theorists under employment law

There is no decisive case law in this area yet. Overall, it will be difficult for employers to take action against conspiracy theorists, as these movements are often irrelevant under criminal law. Thus, employers will only be able to intervene in exceptional cases, e.g. if an employee actively spreads critical content. Other rules may apply to employees who work with children or directly with customers. For example the dismissal of a sales person, who denied in a customer meeting Nazi crimes against the Jews was effective (9 Sa 434/19).

However, from an employment law perspective restraint is advisable when dealing with conspiracy theorists. A warning or dismissal will not hold up in court in most cases as social media is generally assigned to the employee’s private sphere. The nonsense some people spread in their private life is usually not relevant from an employment law perspective. This is something both a free democracy and every individual employer must put up with.

However, employment law consequences are not completely precluded. In any case, there is nothing wrong with a discussion with an employee and the request to refrain from certain behavior. Additionally, it may be worthwhile to keep an eye on the employee in order to uncover previously unknown misconduct (e.g. on social media).  It goes without saying that the relevant data protection regulations must be observed.

Employment law consequences

From the employment law perspective warnings and dismissals are of major relevance. Compensation claims may also be considered in the case of damage to reputation. In most cases, however, the employer will not be able to take employment law actions. Employers are obliged to tolerate the political involvement of employees both outside and inside the workplace. Nevertheless, legal consequences can be considered if certain limits are exceeded on a case-by-case approach.

A general ban of political activity in the workplace restricts the employee’s constitutional rights in an inadmissible manner. The employer is obliged to tolerate opinions and statements (including right-wing and left-wing ones) as far as possible. Therefore, posters, badges and stickers are also permissible in the workplace. This might not apply where the peace within the company is affected or the activity involves politically sensitive areas. However, the permissibility of restrictions should always be assessed for each individual case. 

It is for sure that employers have more actions available in the case of right-wing or racist statements than in the case of conspiracy theories. Nevertheless, employers should carefully consider whether a warning or termination might be successful. In any case, it makes sense to send a clear signal for tolerance and diversity.

Conclusion

Dealing with politically active employees requires a high degree of sensitivity; this also applies to conspiracy theorists. Generally speaking, employee’s political opinions and conspiracy theories are to be accepted. While one’s own sense of social responsibility may often urge immediate action, employers are advised to show restraint with regard to employment law sanctions. While employers do not have to remain silent, the issuance of a warning or dismissal should be well-considered in advance.