Is dismissal an impermissible restriction on the freedom of expression?
Freedom of expression – general
Everyone has the right to freedom of expression. That right may only be restricted if this is necessary in the interests of a democratic society and serves to protect interests such as national security or the good name or rights of others.
Restrictions on freedom of expression in employment relationships
According to the European Court, a different starting point may apply in employment relationships because such relationships are based on mutual trust. A certain degree of loyalty may be expected of employees in this regard, and the employer may set limits on employees’ freedom of expression.
Whether those limits or restrictions imposed by the employer are permissible or not depends on:
- the nature of the expression;
- the employee’s motives for the expression;
- the loss or damage suffered as a result of the expression; and
- the severity of the sanction imposed.
Recent decision by the Court of Appeal in Den Bosch
The facts
An employee employed by a regional training center (ROC) published a critical book in which she described – anonymously – the course of events during the implementation of educational innovations at the training center. In response to complaints filed by colleagues because of the content of the book, the training center asked the Sub-district Court to terminate the employment contract because of a permanently disrupted employment relationship.
The Sub-district Court granted the training center’s request, and the Court of Appeal upheld that decision on appeal. According to the Court of Appeal, the disrupted employment relationship did not result from the publication of the book as such but from the effects that the content of the book had on internal relations and working relationships.
Dutch Supreme Court
The Dutch Supreme Court ruled otherwise. According to the Supreme Court, given the course of events, there was no causal link between the publication and the request for termination. This meant that the request for termination constituted a restriction on the freedom of expression. The Supreme Court referred the case back for further disposal to the Den Bosch Court of Appeal, which had to assess whether or not the restriction was permissible.
Den Bosch Court of Appeal
The Court of Appeal ruled that the interference with the employee’s freedom of expression was not permissible. The book, while critical, was not an offensive appraisal and there was no evidence of blatant falsehoods, the Court of Appeal said. Moreover, the Court of Appeal held that the book served a public interest and could not be considered provocative. Given the importance of freedom of expression, it would have been appropriate for the regional training center to make greater efforts to normalize relations between the employee and the aggrieved colleagues.
Conclusion
Employers can in fact prohibit or sanction work-related publications, but their actions must be proportionate. A disrupted relationship should not be accepted too easily either, even after complaints are made.
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