Disciplinary action at the workplace – legal questions if you are employed by a university or research institution

We know from conversations with foreign academics at German universities and research establishments such as Max Planck institutes that they feel unsure about what they can say in private or in public without endangering their jobs. This uncertainty often dates back to the dismissal of anthropologist Ghassan Hage by the Max-Planck-Institute for Social Anthropology after he was accused in the media of “hatred for Israel” and antisemitism following the publication of social media posts. Outside the academic community too, contracts have been terminated both for tenured public servants on probation (Beamte) and for ordinary employees who have expressed a stance on the conflict between Israel and Palestine. In some cases, the courts have not yet handed down their ruling. 

Fundamentally, however, German labor law is well disposed towards freedom of expression for ordinary employees in public service. Red lines that limit what an academic can say in private or in the course of their professional duties can only be imposed by an employer under specific circumstances. Private research institutions like the Max Planck Society and the Leibniz Association, which are defined as organizations with a distinctive moral ethos (Tendenzbetrieb), are subject in part to specific rules of their own. This is especially problematic when the moral profile of the organization includes concepts that are in themselves contested by scholars, as is the IHRA’s working definition of antisemitism, because academics who are employed there are bound by an enhanced duty of loyalty to the organization’s purpose. 

If academics employed by universities feel that they must apply self-censorship to what they do and say, that is not necessarily because of the applicable legislation or because the protection afforded by freedom of expression and academic freedom does not extend far enough, but because of the way that employment is organized in the German academic system. The potential dangers posed to academic freedom by temporary contracts, long post-docperiods and the dependence of junior researchers on professors have been signaled for a long time. It is often impossible to ascertain on what grounds a contract has not been renewed. And even if a termination of contract is unlawful, legal proceedings take a long time and usually focus not on the resumption of employment but on the amount of compensation to be paid. Foreign academics, whose residence status is linked to employment status, find themselves in a particularly difficult situation if they seek to pursue their cause by legal means.

ECCHR 

Personal values and political views belong within the applicant’s private sphere. Any questions about this intrude onto their universal rights and are therefore fundamentally impermissible. This might be different if you work for company with a moral ethos (Tendenzbetrieb) or are engaged in one of a handful of activities where a specific political attitude is crucial. A Tendenzbetrieb is an organization that directly or predominantly pursues a moral – i.e.,political, religious, charitable, educational, scientific, artistic or opinion-forming – objective. The Max Planck Society has committed to scientific objectives, which makes it a Tendenzbetrieb. Employees of a Max Planck institute who teach, lecture or publish are bound by the purpose and orientation of their institute. Even in this context, however, the same principle applies: at a job interview, applicants need only volunteer information about circumstances that would prevent them from fulfilling the employment contract or would in other ways run counter to the purpose of the organization. For example, an employer is entitled to ask about xenophobic or racist views if the applicant is expected to work with refugees.

Employers can require applicants who sign an employment contract to simultaneously sign a code of conduct or a policy on respectful communication, non-discrimination and similar standards of behavior. The intention is to commit the employee to the employer’s values and ensure that employees adhere to forms of behavior that the employer finds desirable. These codes and policies set out the moral principles by which an employee is bound in an organization of this nature. Moral principles can likewise be defined in a works agreement concluded with the employer by a works council or staff committee. If these agreements limit the freedom of opinion of employees too severely, they lose their validity.  

The freedom of expression protected by the constitution also governs employment. The Federal Labor Court confirms this constantly in its case law. Besides, the employee has an “accessory” obligation in a relationship of employment to be loyal to the employer. This is called the duty of loyalty and it applies to both employees of private organizations and employees in public service. The duty of loyalty is above all relevant to expressions of opinion when there is some reference to the employer – for example, if the employer’s logo appears in a photograph or video or if the employee mentions the place of work.

Ordinary public employees are under no obligation to run their entire lives in such a way that they do not impair the reputation of their employer. At the same time, the duty of loyalty should not prevent political debate at the workplace. After all, freedom of expression is a key value enshrined in the Basic Law. 

Employees who have the tenured status of a public official (Beamte) do have a particular duty to exercise moderation, even outside working hours, and they must actively champion the fundamental order of freedom and democracy. The Federal Labor Court has ruled, however, that not every employee covered by the collective bargaining agreement is subject to this enhanced duty of political loyalty. Not everyone employed in public service must actively champion the fundamental order of freedom and democracy to the same degree as a tenured public official. It is important to note, however, that the legislation governing public sector collective bargaining agreements in the federal states provides in Section 1 paragraph 1 sentence 2 that employees must reflect their commitment to the free, democratic order as enshrined in the Basic Law in all their behavior. This aligns their obligations more closely to those of tenured public servants. 

An employer who feels that an employee has expressed impermissible views can issue a warning and in exceptional cases terminate the employment (without notice) or, if the employment contract is of limited duration, refrain from renewing the contract or making it permanent. However, a warning and in particular a termination of employment is only admissible if the views expressed violate the standards that govern freedom of expression. That red line is not crossed simply because the employer thinks the view expressed is wrong or inappropriate.

When the Max Planck Institute (MPI) terminated the employment of guest professor Ghassam Hage, the Labor Court in Halle ruled that his dismissal was valid (this decision is not yet absolute). In the view of the court, he had questioned the right of Israel to exist in several posts on social media, thereby violating the MPI’s principles. As a professor, he was duty-bound not to contradict the moral orientation of his employer either at or outside the workplace. The MPI was able to rely not only on the usual contractual obligation to respect the employer’s philosophy, but also on its own basic rights pursuant to Article 5 paragraph 3 sentence 1 of the Basic Law, which protects the freedom of art and science, research and teaching. The MPI was therefore within its rights in admonishing persons in its employ, when expressing views at work and elsewhere, to show particular regard for the MPI’s principles, and at all events, if expressing an opinion at odds with those principles, not to do so in such manner that the opinion will remain in the public domain for many years and potentially be associated with the MPI.  

Freedom of expression also applies at the workplace. Our fundamental rights also protect political statements and disputes in the professional environment. If expressions of opinion lead, for example, to a situation where lectures cannot take place due to violent protests, the employer can prohibit expressions of opinion. In a Tendenzbetrieb (see above) employees can also be placed under an obligation not to voice opposition to the moral philosophy of the organization. 

As a basic principle, political opinions voiced during leisure hours and in a private setting are of no concern to the employer. The situation changes, however, if views expressed outside the workplace have an impact on the employment relationship. According to the Federal Labor Court, that is the case if the expression of opinion undermines workplace harmony, the general mission of the public employer or the specific tasks of its employees. In these instances, careful consideration must be given to whether what someone has said outside the workplace really is at the root of the situation and whether that person can be reproached for making the comment.

This means that a comment may be problematic in terms of labor law even when its substance is essentially protected by the freedom of expression – if, for example, the employer had no intention of expressing such a view, but the comment made by the employee is nonetheless ascribed to the employer. In principle, employees cannot speak on behalf of their employer unless that is their function or they have obtained express consent to do so. It is problematic, therefore, if a link to the employer can be established because, for example, the employer’s logo or email address was used or a video was produced outside a company building or a substantive reference was made to the employer.

The workplace Internet and any email address provided by the employer must only be used for work-related activities. It follows that signing an open letter with this email address may constitute a violation of duty, especially if the letter bears no relation to one’s professional activity. The case may be different if private use is expressly allowed or is customary practice at the workplace. In the latter case, however, uncertainty often remains as to whether the practice has genuinely been established at the workplace or to what extent it is accepted. 

If a warning is unlawful, the employer can first be asked out of court to remove the warning from the employee’s HR records. If the employer does not comply, the matter can be pursued before a labor court. Often, however, it makes more sense simply to exercise one’s right of reply by submitting a counter-statement for inclusion in the records.

If a contract is terminated with or without notice, the employee has three weeks to sue for unfair dismissal before a labor court. Even if the dismissal was unlawful, it becomes effective if it is not challenged in court.

If a contract of limited duration is not renewed or converted into a permanent contract, the employee can sue before a labor court up to three weeks after the contract was scheduled to end. However, as the employee is not automatically entitled to a permanent contract or contract renewal, the chances of success are confined to a few substantive grounds and every case will be resolved according to the specific circumstances. 

Employees in public service but also in the private sector have a right to be protected by their employer against insults and threats by colleagues or third parties.

Employers have a duty of care towards their employees. This is the counterpart to the employee’s duty of loyalty. An employer must arrange for the work to be performed in such a way that the employee is protected as effectively as possible from danger to life and limb. If colleagues speak or act in a manner that is discriminatory or insulting, the employer is duty-bound to intervene. This is particularly the case when insults or threats degenerate into harassment. Part of the employer’s duty of care consists in creating a work environment where universal rights, such as those to freedom, equality and dignity, are respected and not violated, especially if the violation is systematic, including as a result of behavior by superiors or colleagues. The employer must ensure this by taking appropriate measures as soon as any conflicts or problems of this kind arise.

The employer is less able to influence the situation outside the workplace. If employees are threatened by a third party, employers must take every possible and reasonable measure to protect them. If a third party demands that somebody be sacked and threatens that otherwise the employer will suffer consequences, although neither the behavior nor the character of the employee have offered any grounds for terminating the contract, the employer cannot simply give in but must shield the employee from attack. Only if this fails and the employer risks incurring major damage if the threat is carried out – if, for example, an important partner intends to end the partnership because an employee has made comments they find undesirable – the employer can consider terminating the contract. In that case, dismissal must be the only practicable option for averting the threat and consideration must also be given to how far the employer’s own conduct has contributed to the pressure. 

In the case of tenured public employees the requirements for the employer are more stringent, once again concomitant with the more stringent requirements made of the employees. Their entitlement to the employer’s protection is even greater. The employer must also defend an employee in public service from unjustified attacks even when these are not punishable offences, such as untrue media reports, in some circumstances by issuing a publicclarification. An unproven assertion that the public employee knowingly behaved in an unlawful manner is, moreover, defamatory and apt to cast a slur on their public reputation. Public servants can, on these grounds, demand that their employer shield them from public accusations by third parties, such as journalists.  

A university employee enjoys the protection of both labor law and, in some respects, anti-discrimination law. These provide a variety of options for responding to discrimination. The situation is trickier for those with contracts of limited duration because the employer does not require any particular reason for not renewing such contracts. There must be convincing evidence, therefore, that there is a connection between the non-renewal of the employee’s contract and any statements made by that employee that are protected by the right to freedom of expression. This is often hard to prove. If the case can be made, however, then by not offering a renewed or permanent contract the employer has violated the prohibition of victimization set out in the Civil Code. This prohibition prevents an employer from discriminating against employees who exercise their rights in a permissible way. An employee in this situation cannot insist on a new employment contract but is entitled to claim compensation. 

The General Act on Equal Treatment does not expressly prohibit discrimination on grounds of political opinion. Section 1 of the Act does, however, provide for protection from discrimination on grounds of religion or belief. The concept “belief” can include political beliefs. According to the Federal Labor Court, however, the test is that the political belief must constitute a “systematic overall structure” with at least a “modicum of system formation and interpretation of the world”. The Labor Court in Berlin has recognized “Marxism-Leninism” as a belief in the meaning of Section 1 AGG. This is controversial terrain in various respects, and every case must be judged on its own merits. Nonetheless, the expression of political views about the Israeli-Palestinian-conflict is probably not explicitly protected under this Act.  

Yes, it is the task of the works council or staff committee to support employees. Although they cannot provide legal representation comparable to that of a lawyer or provide the same advice as legal counsel, they can, for example,accompany the employee to talks with the employer. A complaint against the employer can also be filed through the works council. If the works council think the complaint is justified, they must urge the employer to remedy the situation.