Employees with their own insight, ideas and thought-leading industry knowledge can be a real asset to your business. However, not all employers are happy for staff to outwardly voice their opinion on a public platform.
It’s not uncommon for individuals who are invested in their career to take to sites like LinkedIn or other professional networking forums to share their views and debate with others industry professionals. In many cases, employers capitalise on this, recognising the benefits of employees who are seen as leaders in their field. Others, however, are reluctant to give employees the mic, concerned that their views may not align with that of the company or that confidential information will be leaked.
So what happens if you fall into the latter camp? Is it reasonable to dismiss an employee for sharing their thoughts and opinions with an audience of other professionals?
A recent Hungarian case has highlighted that terminating an individual’s employment for this reason may constitute a breach of freedom of expression.
Herbai v Hungary
The claimant in this case, Mr Herbai, was employed by a Hungarian bank as a human resources management expert. In 2011, Mr Herbai, together with a fellow HR specialist, set up a knowledge-sharing website for HR professionals. The site showed a photograph of Mr Herbai and described him as an expert in HR management working for the HR department of a large domestic bank. It did not, however, mention the bank by name.
Mr Herbai and the website’s other co-founder made a number of personal blog posts on the platform where they shared their opinion – making it clear that these were just opinions – on HR strategy and tax rates. The bank claimed that this violated its code of ethics, which prohibited employees from publishing, formally or informally, any information relating to the functioning and activities of the bank. As a consequence, the decision was made to terminate Mr Herbai’s employment for breaching confidentiality standards.
Following his dismissal, Mr Herbai complained to the Budapest Labour Court. He claimed that by dismissing him, the bank had breached his freedom of expression under Article 10 of the European Convention of Human Rights. This provides the right to freedom of expression and information, provided that the views expressed are:
In accordance with the law
Necessary in a democratic society
Article 10 gives individuals the freedom to hold opinions, as well as to receive and impart information and ideas.
The bank, however, maintained that the dismissal had been fair.
It argued that:
- Mr Herbai’s conduct (providing educational services in the field of human resources management) had infringed its economic interests; and
- Given his position, Mr Herbai had access to confidential information that could be potentially damaging to the bank’s interests if made public.
Verdict
Eventually, the claim ended up before the European Court on Human Rights. Whilst Mr Herbai’s claim was successful, of wider interest, the Court set out four principles in relation to the restriction of the right of free speech in an employment context:
The nature of the speech. For example, whether it related to the public as a whole or a specific group of individuals (the right to free speech would apply in either case). This meant that Mr Herbai's comments, though addressed to HR professionals rather than the public as a whole, still fell within the scope of Article 10.
The motives of the author. A personal grievance or antagonism would make it less likely that the comments would amount to exercising the right to free. In this case, there had been no malicious intent in Mr Herbai’s conduct; the site existed solely to facilitate professional discussions on general HR topics.
The damage caused by the speech to the employer. Evidence will have to be provided of damage if an employer is to have any chance of overriding the right to free speech. In this case, the bank had failed to demonstrate exactly how Mr Herbai’s conduct could have detrimentally impacted its interests.
The severity of the sanction imposed. Employers are required to consider less severe sanctions, such as a written warning, before moving to dismissal. In this case, the bank had rushed to the extreme of terminating Mr Herbai's employment without considering alternative remedies.
Crucially, in cases like this, courts are required to balance the individual’s right to freedom of expression against the employer’s right to protect its legitimate business interests.
In this instance, the Hungarian courts had failed to carry out this balancing exercise, and had therefore fell short in their duty to protect freedom of expression.
James Tamm
Director of Legal Services
Expert Comment
Despite this being a decision of European Court of Human Rights, it does impact UK employers. Regardless of Brexit, the UK will still be signed up to ECHR when it leaves the EU as they are two separate entities. In addition, UK Courts and Tribunals must try to give effect to UK legislation in a way that is compatible with the ECHR. That means fundamental human rights, such as the right to privacy or free speech, are often cited by claimants in Tribunal cases to excuse or explain behaviour that may have led to their dismissal, so cases like this are instructive.
To a certain extent, employers can try to dictate what employees can and can’t say online. A social media policy will be crucial here, as that will set out the ground rules. However, even a very stringent policy is not a magic answer. Employers will still be judged by the general standards of fairness so should not overreact in these situations. It’s easy to say a comment brings a company into disrepute but often quite difficult to prove. Of course, if an employee has been overtly racist or is bullying their colleagues online, that will be different. However, the wide spectrum of social media cases does highlight the importance of taking advice from an Employment Law specialist before acting.
