Although the Corona crisis seems to be behind us, there are new issues that can create significant divisions in society. Consider, for example, the conflict between Israel and Hamas, the war in Ukraine and the ongoing carbon crisis. When employees express their political opinions on these topics on social media such as LinkedIn, it can potentially damage the employer’s reputation. A ruling by District Court Rotterdam outlines a clear framework on how to deal with the tension between employees’ freedom of expression and potential reputational damage to the employer in such cases. Read more below.
Freedom of expression
The basic premise is that an employee has freedom of expression. An employer may impose restrictions on that freedom based on the right of instruction. Whether such restrictions are justified in a specific case depends on the so-called “Herbai criteria,” which are as follows:
- the nature of the expression of opinion;
- the employee’s motives;
- the damage it causes to the employer;
- the severity of the sanction imposed.
What’s at stake here?
An employee employed by Focus posts on Linked-In a statement about the conflict between Israel and Hammas. The employer asks the employee to remove this post. This is done immediately by the employee. Then a few days later, the employee posts on LinkedIn a response to a post from a major investment fund. In this response, the employee asks for proof of the Hamas wrongdoings that the investor’s post addresses. One of Focus’ shareholders contacts the employer and asks for “decisive action” because of the post. The employer complies and informs the employee that it wants to terminate employment, immediately offers the employee a termination proposal and stops paying wages. If the employee does not agree to the termination proposal, the employer asks the court to dissolve the employment contract because of culpable conduct.
According to the judge, there is no culpable conduct. It was inconvenient of the employee to post another message on LinkedIn about the conflict between Israel and Hamas after the discussions. Especially since on LinkedIn statements made by the employee can be directly linked to the employing company. The employee should have understood that it would be better not to comment on this conflict on LinkedIn, especially since Focus has the U.S. government as its largest client. However, the content of the message was not such that it should be inferred that Focus takes a certain position, nor has it become apparent that Focus has suffered concrete because of the message.
The subdistrict court ruled that there has been serious culpable conduct on the part of Focus. By directly pushing for the termination of the employment contract and the suspension of salary, Focus escalated the case unnecessarily. The employment relationship has become so disrupted that it is not reasonable for either of the parties to expect it to continue. This disturbed relationship was caused by Focus. As a result, the court dissolves the employment contract and awards fair compensation to the employee.
Conclusion
In the above ruling, the judge seems to understand the business nature of LinkedIn and recognizes the employer’s interest in the activities of its employees on this platform. In principle, the employer has the authority to give instructions on how employees interact with this platform. In doing so, however, the employer must adhere to the Herbai criteria and first engage in discussions with the employee before proceeding with dismissal directly.