26 August 2024
The conflict between Israel and the Palestinians, corona, the election results. Some examples of social issues that can lead to intense emotions of employees and firm statements in the workplace and via social media.
Not to mention (negative) statements made by employees about their own employer, such as the dismissal case of the bookish teacher at an ROC to be mentioned below. This can cause unrest and damage to the employer. How can and may you deal with this as an employer in the light of the fundamental right of freedom of expression?
Freedom of speech is enshrined in Article 7 of the Dutch Constitution and Article 10 of the European Treaty of Human Rights. The latter article plays a major role in court cases as to whether an employer may act against what he considers to be harmful speech of an employee. Oral statements, posts or likes on social media, publications – these are all forms of, in principle, protected speech. The fundamental right is paramount which protects criticism and also controversial opinions; an employer may not simply restrict the employees in this. But there are limits; the employee’s statements may not harm the interests of the employer, including those of fellow employees.
The reason for this article is the follow-up to the dismissal case of the ROC teacher who literally wrote a book about the education system within her educational institution. The court dissolved the employment contract due to a disrupted working relationship. In 2022, the Supreme Court ruled that the lower courts had failed to test whether the dismissal as a sanction for that expression through the book was permissible. In late 2023, the Den Bosch Court of Appeal subsequently ruled that there was indeed an impermissible interference by employer ROC Mondriaan in freedom of expression by seeking dismissal. Meanwhile, the employee does not want to go back either and the proceedings will end in 2024 with an award of (substantial) fair compensation to her.
This court case shows that there are no hard rules for employers on what an employee may say, via social media or otherwise. However, some broad outlines can be drawn from case law for employers. Insults and discrimination against the employer or colleagues can always be acted upon. After all, the employer has to guard its own reputation as well as ensure a safe workplace for all employees under the Occupational Health and Safety Act. This means that every employee must feel safe to express an opinion.
The employer itself can already provide some clarity by having a policy and enforcing it consistently. Think clearly articulating its own core values and a social media policy. This may include that IT systems, mail, social media may not be used in a way that is unethical or illegal, or that may embarrass the company or its business (relationships) and employees.
European jurisprudence on freedom of expression has ruled that expressions in the employment relationship are more likely to be restricted than in any other context. This is linked to the bond of trust, the requirements of loyalty and discretion associated with the employment relationship.
In a concrete case, a balancing of interests will have to be made by the court, but first by the employer considering a sanction. The interest of the employee in expressing his thoughts and feelings, on the one hand, and the employer’s mostly commercial interest in not suffering any damage as a result of the expression, on the other. Here, case law does provide some ‘guidance’, as follows in particular from the ECHR’s so-called Herbai judgment of 2019. Therein, a number of factors have been mentioned that help an employer and ultimately judge whether the employer may infringe on the freedom of expression through an employment sanction.
Employers can already use the following factors to reasonably assess and argue for themselves why a curtailment of the right to freedom of expression through an employment sanction is justified.
Finally, what type of company the expression plays in is also important. In a factory, the effect of a certain expression may be different from that of a well-known football club as an employer. So the nature of the employer, i.e. what type of company is involved, how does it stand in society, also plays a role in whether there is potential damage and can be acted upon.
The conclusion is that in the context of the employment relationship, not everything can be said. There are no hard rules on limiting an employee’s freedom of expression. However, as mentioned, there are limits that an employee must observe, on pain of sanction by the employer. The main ones are business interests, including those of colleagues and customers, partly in relation to the company’s core values. Having and consistently applying regulations around the use of IT systems and expressions (via social media) helps the employer to be able to take action against harmful statements made by employees.
Do you have any questions regarding this article? If so, please contact us for advice.
