The right to freedom of expression is laid down in, among others, article 10 of the European Convention on Human Rights and article 7 of the Dutch Constitution. In the workplace, this right can conflict with the principle of being a good employee, the employer's right to protect its commercial interests and the right to privacy of others. The Supreme Court's decision of 7 October 2022 offers interesting insights on freedom of expression in the workplace.
Facts and circumstances
In this case, an employee, a teacher at a Regional Training Centre, decided to write a book about her experiences with an educational innovation initiated by her team. She had permission to write the book. However, her manager did stress that she was bound by the principle of being a good employee, the code of conduct and privacy laws. After publication of the book, its contents led to unrest within her team. Several colleagues complained about the way they were recognizably portrayed in her book, which made them feel uncomfortable working with the employee. The director informed the employee that given the circumstances it was undesirable for her to return to the team and asked the employee to temporarily resign her duties. The employee refused to do so, whereupon she was suspended. The employer then requested the subdistrict court to dissolve the employment contract.
Subdistrict court and court of appeal: no intrusion of the employee’s freedom of expression
The subdistrict court dissolved the employment contract ruling that the employment relationship between employee and employer had been disrupted. The subdistrict court rejected the employee's request for fair compensation. The subdistrict court did not share the employee's view that the employer had acted in a seriously culpable manner.
The employee appealed against this decision. The court of appeal agreed with the subdistrict court's decision on dissolution of the employment contract. Unlike the subdistrict court, the court of appeal did award the employee fair compensation because the employer had acted in a seriously culpable manner. The court of appeal also ruled that the disrupted employment relationship had nothing to do with her right to freedom of expression and that the employer had not restricted this right. The court of appeal also saw no such restriction in the employer's request to dissolve the employment contract with the employee. According to the court of appeal, the employer's request for dissolution was not a reaction to the employee expressing her opinion or criticism of the employer's approach to the educational innovation. The request for dissolution is a reaction to the impact of the content of her book on internal relations and working relationships. With her choice to air her opinion in a book, the employee deeply hurt a substantial number of colleagues, and she should have realised that releasing her book would complicate cooperation with several colleagues, the court said.
Supreme Court decision
The employee lodged an appeal in cassation against the court of appeal’s decision. The employee argued in cassation that the statutory provisions on dissolution of the employment contract due to a disrupted working relationship should not constitute a carte blanche to deprive employees of the protection of their right to freedom of expression. The Supreme Court recognizes that the publication of the book written by the employee falls within the scope of the right to freedom of expression. The Supreme Court considered that European case law shows that not only a publication ban constitutes interference with freedom of expression, but also if sanctions of a criminal, employment, private law or disciplinary nature are attached to an expression. A request for dissolution of the employment contract may be considered such a sanction of an employment law nature.
It must also be assessed whether there is a causal link between an expression and the sanction. In answering this question, the totality of events from the expression to the imposition of the sanction as such must be considered. Since the employer's request for dissolution is a response to the impact of the content of the book on internal relations and working relationships, there is a causal link between the publication of the book and the request for dissolution. In the light of the totality of events, the Supreme Court finds that the employer's request for dissolution infringes the employee's freedom of expression. The Supreme Court sets aside the court of appeal’s decision and refers the case to the court of appeal of 's-Hertogenbosch for further consideration and decision.
Interference with freedom of expression by employment law sanctions
This Supreme Court’s decision shows that the scope of the term "interference" goes beyond just a publication ban; an interference with an employee's freedom of expression may also occur if an employment law sanction is attached to an expression. A request for dissolution submitted by an employer is such an employment law sanction. In this context, it must be assessed whether there is a causal link between the request for dissolution and the freedom of expression, given the totality of events.
If an employer submits a request for dissolution in response to an employee's expression or its impact on, for example, internal relations and working relationships, there may be a causal link and thus an interference with the employee's freedom of expression. It can also be concluded from the Supreme Court's decision that other sanctions of an employment-law nature can also lead to an interference with the employee's freedom of expression. These may for example include summary dismissal, suspension, or demotion. With these sanctions, too, there must be a causal link between the sanction and the expression before an interference can be established.
If such interference with an employee's freedom of expression can be assumed, the question is whether it can be justified. To this end, the interests of employer and employee must be weighed against each other. In determining the permissible scope of the restriction of freedom of expression in the employment relationship, European case law shows that the following elements are considered relevant:
- the nature of the expression in question,
- the motives of the author,
- any damage caused by the expression to the employer, and
- the severity of the sanction imposed.
The Supreme Court’s decision clarifies when there can be an interference with the employees' freedom of expression. Employers should bear in mind that taking employment law measures against an employee in response to a particular expression of that employee, or its consequences, may constitute an interference with freedom of expression. It will ultimately depend on the circumstances of the case whether such an infringement actually exists and, if so, whether it can be justified.
If you have any questions following this news item and/or would like further advice on an issue related to freedom of expression in the workplace, please feel free to contact us. We will of course be happy to assist you.