How Far Does an Employee’s Freedom of Expression Extend?

The employment relationship between an employee and her colleagues had been disrupted as a result of the publication of a book by the employee, in which she had also described the relationship with colleagues in such a way that they could be traced back to the colleagues’ personalities. For that reason, the Sub-district Court had dissolved the employment contract. According to the Supreme Court, however, this decision violated the freedom of expression.

Since 2009, an employee had been working as a teacher at an a regional training centre (ROC). In October 2018, she announced that she wanted to write a book about her experiences with personalised learning, an educational innovation that was initiated in the team the employee was engaged in. The director of education and the manager of the training centre’s communication and marketing team had responded positively to the plan, but the manager of education had pointed out to the employee that she should prevent exacerbation of the relationship with colleagues and/or students and disclosure of confidential information.
When, one year later, the book was published, unrest arose within the team the employee belonged to. A number of colleagues complained that what had been described in the book could be traced back to individuals and that they had been portrayed in such a way that, as a result, they no longer felt comfortable working with the employee. Without involving the employee, the training centre decided to discuss the book with a delegation of the employees involved. When the employee found out, she asked the training centre for clarification. As a result, the employee reported ill. Since work resumption after recovery was considered undesirable as long as the problem had not been resolved, the employee was suspended.
It took ten months before, ultimately, a request to dissolve the employment contract for a disrupted employment relationship was submitted to the Sub-district Court.
The Sub-district Court dissolved the employment contract, granting the transitional allowance only. On appeal, the Court of Appeal upheld the dissolution of the employment contract, but awarded the employee a fair compensation of € 40,000 in addition to the transitional allowance. According to the Court of Appeal, contrary to what the employee had argued, the dissolution of the employment contract had nothing to do with the freedom of expression because the dissolution of the employment contract had not been the result of criticising the way in which the training centre dealt with educational innovation, but with the employee’s choice to express her opinion in a book by quite precisely describing daily work situations and expressions of her colleagues.
The way in which she had portrayed these colleagues, according to the Court of Appeal, had deeply hurt a substantial number of colleagues. In the Court’s opinion, the employee should have realized that this could complicate the cooperation with her colleagues. Besides, she had also been forewarned about it. In addition, the employee had disclosed confidential information, such as a loss suffered by the training centre, and in social media reactions she had mainly shown concern for the curtailing of her right to freedom of expression, but hardly any interest in the feelings of her colleagues.
When the employee lodged an appeal in cassation, the Supreme Court had to rule on the case. It showed a different view on the case than the Court of Appeal had. First and foremost the Supreme Court stated that the Court of Appeal had correctly ruled that publication of the book was subject to the freedom of expression, as protected by Article 10 of the European Convention on Human Rights. But the Supreme Court also referred to the case law of the European Court of Human Rights, according to which sanctions, which may also be of an labour- law nature, may interfere with the freedom of expression. According to the Supreme Court, on the basis of all events, from the expression of the statement to the imposition of the sanction, it should be assessed whether the sanction was the result of expressing an opinion. These events should be viewed in conjunction one with the other. Where, according to the Court of Appeal, the request for dissolution was the result of the reactions to the contents of the book, the conclusion must be that the request for dissolution constituted an interference with the freedom of expression. Therefore, the Supreme Court annulled the decision of the Court of Appeal and determined that another Court of Appeal had to rule on the request for dissolution again.

The decision of the Supreme Court raises the question of how to deal with a situation such as the above, in which the employment relationship is disrupted as a result of the expression of an opinion by an employee. In the event of dissolution of the employment contract due to a disrupted employment relationship, the basic principle in the law is that the employment contract must be dissolved if the disruption is serious and sustainable. The requirement of the sustainability entails that sufficient efforts to find a solution for the disruption of the employment relationship other than through dissolution of the employment relationship, for example by means of mediation, must be made first. If the disruption is sustainable, meaning that it cannot be resolved in any other way than through dissolution of the employment contract, but if the incident is not serious enough to justify dissolution of the employment contract, the Court must grant the employee fair compensation. The compensation awarded by the Court of Appeal shows that the latter was at issue in the above case.
The annulment of the Supreme Court’s decision and the referral of the case to another Court of Appeal, instead of handling the case itself by rejecting the dissolution request, raises the question of what exactly the Supreme Court found that was lacking in the decision of the Court of Appeal. The provision of Article 10 of the European Convention on Human Rights allows an infringement upon the right to freedom of expression if three requirements are met:
1. The restriction must be based on a provision in the law.
2. The restriction must be necessary within a democratic society.
3. The restriction must serve the protection of certain interests, including protection of the rights of others and prevent distribution of confidential information.
The question whether the restriction is necessary within a democratic society must be weighed up against all interests, including:
• the context of the limitation;
• the importance of the expression;
• the nature and seriousness of the infringement;
• the nature and seriousness of the prejudice to interests resulting from the expression;
• the importance of the expression for the person concerned;
• the level and nature of any sanctions.
Disregarding these circumstances, the Supreme Court probably had no choice but to annul the decision of the Court of Appeal.
The Court of Appeal that has to reassess the case may therefore, in principle, still reach the same conclusion, provided it will be better substantiated. But beware, the conditions for restricting an employee's freedom of expression are very strict, so it will not be easy to substantiate why the dissolution of the employment contract will not violate the right to freedom of expression.