L'utilisation de WhatsApp au travail en Allemagne : Entre utilité et risques juridiques - Quand l'application devient un enjeu professionnel
The WhatsApp application is now an integral part of our daily lives. In the professional context, it is advisable to use the application with prudence. The use of this messaging service raises certain questions, particularly with regard to data protection and labour law.
Protection of data
One of the main criticisms of the application is data protection. During the use of the application, WhatsApp systematically accesses users' mobile phone networks. Or, these contacts have often not given their consent to transmit their data to the application.
Droit du travail
In terms of employment law, the legal use of WhatsApp can be a challenge, especially when the private use of professional devices is authorised. It is important to know what data can be consulted by the employer without, of course, violating the privacy of the employees. This question is particularly delicate when the employer is aware of the content of WhatsApp discussions that could justify dismissal. On this occasion, the case law provides for the following provisions.
What are the professional risks associated with the use of WhatsApp?
The publication of images showing employees having a party during a medical arrest can justify dismissal. An employee, assistant in the field of health, had been put on duty in the evening for a weekend. She had filed a sick note for that date. The assistant went to a party on Saturday evening, as shown by photos on the organiser's website and in her WhatsApp status. The employer subsequently dismissed the assistant for serious misconduct (ArbG Siegburg, arrêt du 1 décembre 2022 - 5 CA 1200/22). The case is still ongoing.
If an employee makes false allegations that are likely to damage the reputation of a colleague, this may also constitute grounds for dismissal. In this case, it is essential to determine whether the affirmation is made in public and thus contributes to social harmony. In the case in question, an employee sent a WhatsApp message to another colleague stating that a colleague had been convicted of an offence. The employee was dismissed during her trial period (LAG Baden-Württemberg, arrêt du 14 mars 2019 - 17 SA 52/18).
An employee made insulting, sexist and inhumane comments towards the employer in a WhatsApp group with colleagues. The comments were made in a confidential environment such as a private WhatsApp group. As a result, the general right to privacy of the person concerned prevails over the right of the employer and the dismissal was declared null due to the prohibition to use the information obtained illegally (LAG Niedersachsen, arrêt du 19 décembre 2022 - 15 SA 286/22).
With regard to the protection of data, the private use of the portable professional can cause conflicts in the event of dismissal. An employer seeks to access the data of the portable professional in order to obtain evidence to justify the immediate dismissal of the employee. The use of the portable professional for private purposes was nevertheless authorised. The processing of data, access and analysis of private messages on WhatsApp were illegal, which gave rise to the payment of damages and interests to the employee for breach of data protection (ArbG Mannheim, ruling of 20 May 2021 - 14 CA 135/20).
If you would like more information, our Franco-Alemand accountants are at your disposal in Paris and Bonn for personalised advice. In addition, we are happy to advise you throughout France and Germany by telephone and video conference. Votre expert-comptable franco-allemand FRADECO.
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The preparation of these newsletters in French and German has been the subject of the utmost care, subject to modifications, errors and omissions. This abstract legal presentation in this newsletter can in no way replace an individualised Franco-Allemand advice on civil and tax law for each specific case. Subsequent modifications of the legal framework, of the opinions of the German or French tax authorities or of jurisprudence, including those with retroactive effects, are possible.