Companies are afraid of reputation damages and trouble within the company, if their employees are associated with certain movements (e.g. “Querdenker” and “QAnon”). The question of how to deal with supporters of such movements under German employment law arises increasingly often as conspiracy theorists have become a phenomenon with considerable impact in the context of the Corona pandemic. Employers wonder under which circumstances they can issue a warning or even a dismissal.
Employee’s constitutional rights 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.
The employer is only allowed to intervene in off-duty conduct if his reasonable interests are endangered (e.g. employee damages the employer’s reputation, violates a duty of loyalty). 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.
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.
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 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.
For more information on these articles or any other issues involving labour and employment matters in Germany, please contact Dr. Tobias Pusch (Partner) of Pusch Wahlig Workplace Law at email@example.com or visit www.pwwl.de.