Rate employers on Kununu and Co.: You have to keep that in mind

Many employees gossip about their employer and their colleagues on rating platforms such as Kununu, Glassdoor, Jobvoting and Indeed. In addition, they also let off steam on social networks like Facebook. If employees go too far, they have to reckon with legal consequences.

Dismissal for gossip about the employer

During the current employment relationship, the employer may be entitled to terminate the employee due to his or her evaluation under Section 1 KSchG. This normally presupposes that the employee has thereby culpably violated his/her obligations under the employment contract. In addition, the employer may also be able to terminate him without notice.

This presupposes that the gossip on the rating platform is to be regarded as an important reason within the meaning of Section 626 (1) BGB. Furthermore, a weighing of interests must show that the employer’s interest in the termination of the employment relationship is to be rated higher than the employee’s interest in the continuation of the employment relationship.

A sufficient reason for termination can normally be assumed if the rating on Kununu and Co. is no longer covered by the freedom of expression according to Art. 5 Para. 1 GG.

Inadmissible statement of facts as a reason for termination

This is to be assumed if it is an inaccurate fact that is likely to make the employer or colleague contemptible or to degrade it in public opinion. A typical example is that an employee untruthfully states on an evaluation platform that the employer allegedly does not pay him the agreed salary or pays him late.

The same applies if the employee pretends that the employer is constantly monitoring all employees, e.g. via video surveillance at the workplace. Facts are characterized by the fact that they can be proved.

insult as a reason for dismissal

Termination is also an option if the review is offensive. This presupposes that the employee violates the honor of the employer or a colleague. This violates their general right of personality, which the case law ultimately derives from human dignity (Article 2(1) of the Basic Law, Article 1(1) of the Basic Law).

A violation of honor is to be assumed above all if the evaluation is deliberately intended to go below the belt. Typical examples are the designation as an asshole, stupid pig or child molester.

In one case, a cold waltz had described his boss on the wall of his Facebook profile as a “little turd”, as a “lazy pig who has never worked in his shitty life” and as a “bastard”. These postings were public and were read by at least 36 work colleagues and their friends. After the employer found out about this, he terminated the employee without notice and, alternatively, properly.

The Hagen Labor Court decided that these expressions in a social network are extremely defamatory statements that are to be regarded as important reasons within the meaning of Section 626 (1) BGB. Nevertheless, the judges regarded dismissal without notice as unlawful.

They justified this by saying that the employee’s interest in continuing the employment relationship until the end of the notice period prevails due to the long period of employment. However, the court found that the ordinary termination was effective (ArbG Hagen, judgment of May 16, 2012, file number 3 Ca 2597/11).

What falls under freedom of expression

The situation is usually different when the assessment is objective criticism, for example of the working conditions. This is also protected by the freedom of expression of Art. 5 Para. 1 GG if it takes place in a crude form. The following examples show what is important when distinguishing between an insult and permissible criticism.

In one case, a trainee described his employer on Facebook as “human abusers and exploiters”. There was also talk of “serfdom”. The employer fired him without notice. The Hamm Regional Labor Court confirmed that this was a case of libel. Because of this, the judges considered the dismissal without notice for an important reason within the meaning of Section 626 (1) BGB to be justified. Continued employment is not reasonable for the employer (LAG Hamm, judgment of October 10, 2012, file number 3 Sa 644/12).

However, things turned out differently for an employee who had described his employer on Facebook as an “exploitative company”, “like all other capitalist companies”. The Gießen Labor Court saw the employer’s dismissal without notice as invalid for lack of good cause in accordance with Section 626 (1) of the German Civil Code. The court justified this by saying that the posting was covered by freedom of expression. According to the court, this is due to the fact that the statement was made in connection with the company’s Nazi past.

In addition, by comparing it with other capitalist companies, it should be understood as a criticism of the capitalist system that may be expressed (ArbG Gießen, decision of June 10th, 2020, file number 6 BV 7/19).

Does the employee have to prove factual claims?

First of all, in the event of termination, the employer must prove that the employee made the statements he was accused of on employee rating platforms or social networks such as Facebook. If this is established and the employer claims that the fact in question is untrue, then the employee must at least provide specific circumstances that speak in favor of the correctness of his statement.

The employer must refute this argument (cf. Federal Labor Court, judgment of December 16, 2021, file number 2 AZR 356/21). The employee is on the safe side if he can prove that the employer is monitoring all employees or has not paid them wages.

What other consequences do inadmissible ratings have?

Employees who gossip about their employer and their colleagues via employer platforms or other social networks face further significant legal consequences in addition to being dismissed. All former employees must also reckon with these.

criminal consequences

First of all, the employee must expect criminal consequences. If he claims an inaccurate fact on the rating platform that makes the employer or a colleague look contemptuous, punishment for defamation according to § 186 StGB or defamation according to § 187 StGB can be considered.

Defamation is characterized by the employee asserting an incorrect fact against their better judgment, which is often difficult to prove. On the other hand, slander is already a criminal offense if the alleged fact cannot be proven. This means that the employee must prove that his claim is correct. Otherwise, he must in any case expect punishment for defamation under Section 186 of the Criminal Code.

Employers or colleagues may have civil claims

Anyone who insults their employer or colleague in employer portals or claims incorrect slanderous facts about them faces serious civil law consequences. The victim can sue him for deletion of the comment (from § 1004 Para. 1 BGB, § 823 BGB). This will cost the author dearly if the victim’s claim is successful, as he will then have to pay both parties’ court costs and extrajudicial costs.

Again, the employee usually has to show that the fact they are claiming is true. This results from the fact that the reversal of the burden of proof in Section 186 of the Criminal Code also applies to claims for injunctive relief under civil law due to a violation of personal rights. (cf. LG Nuremberg-Fürth, judgment of October 25, 2019, file number 11 O 3479/19; BGH, judgment of December 11, 2012, file number VI ZR 314/10, BVerfG, decision of June 28, 2016, file number 1 BvR 3388/ 14).

Under certain circumstances, the employer or the colleague may also be entitled to compensation for pain and suffering as well as material damages (corresponding to § 823 BGB, Art. 2 Para. 1 GG, Art. 1 Para. 1 GG). This presupposes that it has been severely violated in its general personality rights. It must be a disrepute of considerable importance.

Rating platforms must provide information

Since December 1, 2021, the operator of a rating portal or a social network may have to provide information about the name of the respective user in the event of an insult or inaccurate fact § 21 paragraph 2 sentence 2 of the Telecommunications Telemedia Data Protection Act (TTDSG). If the latter refuses, the person concerned must, if necessary, sue the operator for information. Previously, this claim was derived from case law from Section 14 (3) TMG (in the earlier version) in conjunction with Section 242 BGB.

This was the case, for example, with an IT company about which a former employee on Kununu had probably given the following anonymous rating under salary/social benefits: “Ridiculous … punctual salary payments can be forgotten!” The Higher Regional Court of Celle made it clear that the rating portal must provide the requested information about the person of the author. The judges justified this with the fact that this statement is probably an inadmissible factual allegation.

Also interesting…

Whether it is actually untrue cannot be clarified in the context of the information procedure, but must be checked afterwards. According to the court, it is sufficient that the portal has done everything to clarify the facts (OLG Celle, decision of September 23, 2021, file number 5 W 39/21).

The fact that the courts are not so strict here is due to the fact that the victims of an improper review must find out the identity of the author. Otherwise they cannot sue him for injunctive relief or damages. Because in a lawsuit before a civil court, the identity of the author of the insulting statements must be known as the respondent.

Conclusion

Former employees should therefore also think carefully about what they say about their former employer or colleagues on platforms such as Kununu and Co. or in social networks. This also applies if you submit an anonymous review. They should be able to substantiate the facts they claim. Otherwise it will quickly become expensive. In addition, they must fear criminal sanctions.