What behavior of employees makes a hostile workplace
Xenophobic statements in the workplace can lead to dismissal
Anyone who makes xenophobic statements to colleagues sometimes risks being dismissed without notice. Statements hostile to foreigners may well constitute grounds for dismissal. And not only when they are made in the workplace, but also when racist postings are made on social networks that the employer learns about.
What are xenophobic or racist statements?
The offense of sedition is regulated in Section 130 of the Criminal Code: "Anyone who, in a way that is likely to disturb the public peace,
1. incites hatred, calls for violent or arbitrary measures against a national, racial, religious or ethnic group, against parts of the population or against an individual because of his or her membership of a specified group or part of the population
2. Attacks the human dignity of others by insulting, maliciously, contemptuously or slandering a specified group, parts of the population or an individual because of their membership of a specified group or part of the population,
is punished with imprisonment from three months to five years. "
Xenophobic statements in the workplace (© fizkes / fotolia.com) According to Section 130 (2) StGB, this is also the case Disseminating such writings is punishable.
"Insulting, maliciously despising or slandering" is to be understood as defaming groups of the population that can get through Allegations of fact as well as through Value judgments respectively. There must also be a Attack on human dignity to be answered in the affirmative.
Xenophobic or racist statements, which can even constitute a criminal offense, must always be reported by the Freedom of expression delineated become. Article 5 of the Basic Law states: "Everyone has the right to freely express and disseminate his or her opinion in words, writing and images [...]." Freedom of expression is a valuable asset, but its limits are where the personal honor of the other begins or also put a stop to general laws. Insulting or degrading other people by expressing an opinion is not permitted. In the case law, such statements, which lack any factual reference and only aim to offend and defame a person, are called abusive criticism.
Xenophobia in the workplace - what can the employer do?
If an employee makes xenophobic statements about a company employee, he is in breach of his contractual obligations. The employer does not have to accept such a breach of duty, he is given the opportunity to treat the employee concerned to terminate due to behavior.
The employer has one for his employees Duty of care. Accordingly, he cannot allow one of his employees to be discriminated against in this way. The obligation to take appropriate measures to protect the discriminated employee from further xenophobic hostility also results from Section 12 (3) of the General Equal Treatment Act (AGG): "If employees violate the prohibition of discrimination in Section 7 (1), the employer must take the appropriate, necessary and appropriate measures to prevent discrimination such as warning, implementation, transfer or termination in individual cases."
And Section 104 of the Works Constitution Act also applies here: "If an employee has repeatedly and seriously disrupted the peace of the company through illegal behavior or gross violation of the principles contained in Section 75 (1), in particular through racial or xenophobic activities, the works council can request the employer to dismiss or transfer him."
If the employee can no longer invoke freedom of expression due to insults or defamatory criticism, at least that is the case gross insults is likely to be the case, a termination so be entirely justified. For example, while an employee's statement that “The boat is full” was seen as a political statement covered by freedom of expression, dismissal without notice is an option for racist slogans such as “Heil Hitler”.
It is also questionable how the situation will develop when right-wing slogans are heard at the regulars' table or employees publish racist postings on social networks. Many employers do not want to be associated with xenophobic agitation by their employees, as this can also damage their image. In principle, it is none of your employer's business what the employee does in his free time. The situation is different if statements are made that affect the interests of the employer.
Becomes the worker who is xenophobic in public expresses, associated with the company, this can have a damaging effect on the company's reputation. When posting in social networks, the courts therefore also depend on whether it is possible for other users to establish a connection between the xenophobic posting and the company. It can be sufficient for this if the employee who posts the insults on the network posts publicly viewable profile in which he names his employer.
Quite a few companies have now drawn up rules of conduct or company agreements that set guidelines for behavior in social media. Should a corresponding misconduct nevertheless occur, these behavior guidelines and works agreements can be used when assessing a termination.
Termination due to racist statements
Termination (© joachim-lechner / fotolia.com) If racist remarks are made, this is a controllable behavior of the respective employee. So he is able to refrain from this behavior. Therefore, a conduct-related termination is an option. However, it has to be clarified whether a Warning should take place, with which the employee is requested to refrain from such statements in the future.
Possibility of extraordinary termination
In this regard, the Berlin Labor Court decided that xenophobic statements during work actually represent an important reason within the meaning of Section 626 of the German Civil Code. So there would also be one extraordinary termination possible. In the specific case in which a Polish employee was insulted by a colleague in an xenophobic manner almost every day for several years, the court also saw a warning as not necessary. The employee should have known in advance that his employer would not tolerate such behavior.
Carrying out a weighing of interests by the court in the event of termination without notice
However, employers should note that a Termination without notice due to xenophobia does not always have to stand up in court. The judge will always weigh up interests. Factors such as length of service, the age of the employee, his chances on the job market, but also the question of whether a previous provocation has taken place, are included in the judicial assessment. Then a decision is made as to whether the termination was justified or not. It also plays a role here whether the statements disturb the peace of the company. That would be answered in the affirmative, for example, if the insults ended in a physical confrontation.
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