Germany Labour Law Update: Climate Change Protests: (No) Room for Manoeuvre for Employers in the Event of Off-Duty Behaviour?

The wave of climate protests is not abating. As a result, the new form of protest of “climate sticking” is also moving into the focus of labour law considerations. Employers must expect employees to take part in media-effective protest actions. But what is to be done if your own employee actively participates in protests such as those of the “last generation” in his free time? Whether and how to react to this type of private commitment depends entirely on the circumstances of the individual case.

The principle

It is only possible to justify consequences under labour law with private life under very narrow conditions. This is because the employee’s off-duty behavior is largely beyond the employer’s control. However, it can have an impact on the contractual obligation if there is a connection to the obligations under the employment contract or the employee’s activity and the legitimate interests of the employer are violated as a result. In addition to the employment contract, the legal basis for this is also § 241 II BGB, which may result in duties of consideration to protect interests in the off-duty sector.

The Problem

The hurdles to affirming this factual connection are set high by the established case law of the BAG. Even criminal or extremist off-duty conduct on the part of the employee does not automatically justify an encroachment by the employer on the employee’s personal freedoms, in this case the freedom of expression and assembly under Art. 5 and 8 GG. On the one hand, the employer’s interests worthy of protection must always be affected. On the other hand, a retroactive “sanctioning” of the breach of the duty of consideration under labor law due to dismissal for behavioral or personal reasons is out of the question. Dismissal for behavioral reasons must always be assessed in terms of the future due to the negative prognosis principle. Actions that have already been taken in the past can therefore at most have an indicative effect of a risk of repetition. There is only room for manoeuvre for dismissal for personal reasons if the employer has irretrievably lost confidence in the employee’s company-related loyalty due to the misconduct and continued employment is unreasonable. This will only be the case in exceptional cases. Therefore, the most likely way to complain about the actions is to issue a warning, which at the same time warns of further breaches of duty.

The key question

The decisive factor is therefore whether the protest action is intrinsically related to the profession itself or to the employer’s interests. It would be conceivable, for example, that the employee appears at the protest in uniform. Then the behavior is no longer purely “external” and can be assigned to the employer in the external effect. Even with regard to the fundamental rights of the employee, it may be unacceptable for the employer to be associated with radical actions in the media. Whether the damage to the employee’s reputation is also attributable to the employee if third parties establish this connection, for example if the press locates the activists’ employers, cannot be answered with this clarity. In such a case, it is likely that no connection to the employment relationship can be established.

Also, the nature of the protest or its immediate effects could contradict the content of the activity owed or the values and overarching goals of the employer. The backlogs caused by road blockades not only stop other workers from travelling to the place of work or transporting goods. As a result of the protests, emergency services and rescue vehicles have already been obstructed on their routes several times. If, for example, the protesters themselves are employees of these (aid) organizations, their behavior directly prevents both the work of their colleagues and the enforcement of the interests and ethical guidelines of their employers. In such a constellation, the necessary connection to the employment relationship can be established argumentatively. Measures on the part of the employer, such as issuing a warning, are conceivable.

Result

Under certain circumstances, therefore, there may be a course of action for affected employers. Whether the employer has to tolerate off-duty behavior depends on the individual case. It will only be possible to establish a connection to the employment relationship in exceptional cases. The employer is therefore recommended to take a well-considered approach.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact germanylabor@transatlanticlaw.com

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