Is the employee out of line?

An employee has freedom of expression. The fact that this freedom can sometimes be at odds with the interests of the employer is shown, among other things, by a Supreme Court ruling of October 7. The Supreme Court had to rule in a dispute between ROC Nijmegen and a teacher. The lecturer had published a critical book about the state of affairs at her employer. ROC suspended the employee and submitted a request for dissolution to the subdistrict court. How does this turn out? We will tell you in this blog. 

Freedom of expression

Almost everyone is familiar with freedom of speech. This fundamental right is enshrined in the Constitution and the European Convention on Human Rights (ECHR), among others. Moreover, freedom of speech is frequently in the news-due to various reasons. Freedom of speech also applies to employees. A dismissal or other sanction under employment law may violate this freedom. If so, there must be a sufficient connection between the employee's expression and the sanction.

Infringement of a fundamental right

A violation of a fundamental right, such as freedom of expression, may also be justified. The court must weigh interests. In the case of freedom of speech, for example, the general (e.g. scientific) or personal interest of an expression plays a role, but also to what extent the interests of a third party are damaged by the expression. A stricter test applies to the employment relationship. The employee may be expected to show a certain loyalty to the employer. In the employment relationship, the following circumstances must therefore be weighed:

• (i) The nature of speech;
• (ii) The employee's motives for the expression;
• (iii) the damages suffered by the employer as a result of the employee's expression;
• (iv) The severity of the sanction imposed by the employer.

Supreme Court disagrees with court and district judge

The subdistrict court dissolved the employment contract because of a disturbed working relationship. The court upheld this judgment, but awarded fair compensation to the employee. Fair compensation can be awarded to the employee if the employer has acted or failed to act in a seriously culpable manner. The court found that this was the case. Among other things, ROC suspended the employee too quickly after the publication of the book. This was damaging to the employment relationship and stood in the way of solutions other than termination of the employment contract.

The employee complains to the Supreme Court that the court, like the subdistrict court, erred in disregarding that there was a restriction on freedom of expression. The Supreme Court agreed. The court found that the request for dissolution was in response to the consequences of the publication of the book. Those consequences included internal relations and working relationships. On that basis, there was such a connection between the publication of the book and the request for dissolution that the request for dissolution was an interference with freedom of expression. The Supreme Court set aside the trial court's ruling that the employment contract was rightly dissolved and referred back to another court for further consideration.

The court referred back will have to examine whether ROC's interference with the teacher's freedom of expression meets the legal requirements and whether it can lead to the dissolution of the employment contract.

Conclusion

The publication of a critical book about the employer may fall within the employee's freedom of expression. Therefore, an employment sanction as a result of such a publication may violate this freedom of expression. The employer must always keep the fundamental rights of its employees in mind when acting. On the other hand, a certain loyalty may be expected from the employee.

Do you have questions about your employees' freedom of speech or other fundamental rights? Or are you dealing with a critical publication or online post by an employee? If so, please be sure to contact our attorneys employment law We are happy to help.