A warning for Facebook post can be valid even if the post has since been deleted – a recent case from the Higher Labor Court (LAG) of Düsseldorf demonstrates this. An employee of a steel company posted a campaign poster in summer 2025 showing a female colleague with a Hitler-style mustache in connection with a works council election. The employer issued a written warning. The employee claimed the screenshots were AI-generated fakes. The court did not believe him.
The case raises questions that concern many employees: Am I allowed to express political views on social networks? What happens if a post has been deleted? And what role do closed groups play? The answers from the Higher Labor Court of Düsseldorf are sobering – but also instructive.
What Exactly Happened: An Election Campaign Post with a Fatal Image Manipulation
The employee had worked as a blue-collar worker at a steel company since 1990. He had been a substitute member of the works council since 2013. Works council elections were scheduled for summer 2025. The employee ran for List 4, while a female colleague ran for the union-organized List 9. In a closed Facebook group called “[Employer Name] Fanclub,” employees of the company exchanged views – the employee was also a member there.
On June 11, 2025, a post appeared under his profile with the words: “Dear colleagues, do you really want to be represented by such people? List 4 – factual and smart!” It showed an excerpt of List 9’s campaign poster featuring the colleague – adorned with a mustache modeled on Adolf Hitler’s. The post is no longer findable. The employer relied on screenshots in its possession and issued a written warning to the employee on July 10, 2025.
The employee fought back. He denied ever publishing the post and claimed the screenshots were AI-generated forgeries. The Labor Court of Duisburg ruled on December 18, 2025. The employee appealed. He was also unsuccessful before the Higher Labor Court of Düsseldorf: after the 6th Chamber communicated the result of the evidence-taking on October 2, 2026, he withdrew his appeal.
Why the Employer Was Allowed to Issue a Warning: Denigration Instead of Freedom of Expression
The 6th Chamber of the Higher Labor Court classified the post as a breach of contractual duties. The depiction of the colleague with a Hitler mustache establishes a reference to Adolf Hitler and National Socialism and denigrates her. Such denigration is not covered by freedom of expression – not even in the context of a works council election.
This is an important point: Anyone running for a list may of course campaign for themselves and criticize other lists. But the line is drawn where people are placed in proximity to National Socialism or have their dignity violated. This applies regardless of whether the post was made in a closed group or publicly. What matters is that colleagues and supervisors could see it.
Employees owe their employer and their colleagues a duty of consideration. This duty does not end at the factory gate. Anyone who spreads defamatory content about colleagues in their private sphere must expect consequences. This is also shown by comparison with other cases where statements in messengers or social networks led to employment law measures – such as the summary dismissal due to WhatsApp.
The Evidence-Taking: How the Court Exposed the Employee
The core of the proceedings was the question of the Facebook post’s authenticity. The employee had claimed the screenshots were AI-generated. The 6th Chamber heard three witnesses: the female colleague, another employee, and the administrator of the Facebook group.
The colleague and the other employee credibly testified that they had seen the post on the morning of June 11, 2025 in the group and had taken screenshots on their phones. They were able to present these screenshots. Additionally, there was WhatsApp communication between the two referring to the screenshots. The chamber found these statements credible. The administrator’s testimony, by contrast, was contradictory and did not convince the court.
For employees, this is a key lesson: A deleted post does not automatically vanish without a trace. Screenshots, witnesses, and accompanying messages can prove the existence of a post. Anyone defending themselves with the claim that a piece of evidence is AI-generated must provide concrete indications. A mere protective assertion does not suffice in court.
Three Lessons for Your Social Media Presence
The case shows how quickly a supposedly private post can become an employment law problem. Closed Facebook groups are not a legal vacuum. If colleagues or supervisors are members there, any post can be submitted to the personnel file – even if it is deleted later.
Particularly risky are contents that denigrate persons or associate them with Nazi symbolism. Such posts are protected neither by freedom of expression nor by election campaigning. Neither long years of service nor a works council office change this.
- Consider before every post who might see it – even in closed groups.
- Refrain from insults, Nazi comparisons, and other denigrating content.
- Do not assume that deleting removes traces. Screenshots and witnesses can prove the post.
Anyone who repeatedly attracts attention through such misconduct risks a conduct-related dismissal sooner or later. The written warning is often only the first stage. You should therefore examine social media content related to your work environment with particular care.
Warning for Facebook Post: Your Rights and Options
Anyone who receives a warning for Facebook post should take it seriously – but not panic. A written warning is not a dismissal. However, it is an official document that can facilitate a dismissal in the event of repetition. It is therefore worth examining the warning carefully and reacting correctly.
First, check whether the warning describes the allegation concretely. A valid written warning must contain three things: the complained-of behavior, the breached duty, and the demand to show contract-compliant behavior in the future. If one of these elements is missing, the warning may be invalid.
If you consider the allegations unfounded, you have several options: You can object in writing, submit a counter-statement for the personnel file, or – in serious cases – pursue a lawsuit for removal of the warning from the personnel file. Whether this makes sense should be discussed with a specialist lawyer for employment law. A litigation funder like RechtStark can cover the costs of such proceedings under certain conditions.
Important: If the warning later turns into a dismissal, you have only three weeks for a unfair dismissal claim. After that, the dismissal can no longer be challenged in many cases. A guide for the first steps is provided by the checklist for the first days after a dismissal.
When You Can Fight Back Against a Written Warning
Not every written warning stands up in court. The employer must prove that the employee actually breached a duty. In the case of the Higher Labor Court of Düsseldorf, this proof succeeded through witness statements and screenshots. If such proof is lacking, the warning cannot stand.
Proportionality also plays a role. A written warning must not be issued for a trivial reason. A one-off, minor incident without connection to the employment relationship may not justify a warning under certain circumstances. The same applies if the employer waited a very long time before issuing the warning. And finally, no warning may be issued if the employee acted within the scope of their freedom of expression. Insults, defamation, and National Socialist allusions, however, regularly fall outside this protection.
If you consider a written warning unfounded, you should not simply wait. An invalid warning can still be used as grounds for a dismissal later if it is not challenged. Have the prospects of a removal lawsuit assessed by a lawyer at an early stage.
Conclusion: How to Protect Yourself from Social Media Trouble
The warning for Facebook post shows: Even supposedly private statements can have consequences in the employment relationship. The best protection is a conscious approach to social media. Refrain from denigrating content – especially comparisons with National Socialism. Check before posting who can see the post and how it might affect colleagues. Do not rely on closed groups or quick deletion.
If you still receive a written warning, act deliberately: Examine the content, seek legal advice, and decide whether to challenge the warning. Should a dismissal follow later, every deadline counts. An unfair dismissal claim must be filed with the labor court within three weeks. The decisive factor is that you do not remain passive.
Note: This article is for general information purposes only and does not replace individual legal advice. For a free initial assessment of whether litigation funding may be an option for your case, you can contact RechtStark.