For several years now, social media has been an integral part of our lives. One consequence of this is that the line between work and private life is sometimes blurred. Where previously the employer had nothing to say about the statements made by the employee in discussions on birthdays or in the pub, the most heated debates now take place online before everyone’s eyes. Certainly on the platform LinkedIn, where the users are often linked to their employer, this can raise interesting issues for employment law. May an employer protect its reputation online? Or is this a restriction of freedom of speech?
These questions were answered by the Arnhem-Leeuwarden Court of Appeal on 16 May 2022. In the assessment of this judgment, the Subdistrict Court and the Court of Appeal illustrated how the scope of the right of freedom of expression within the employment contract should be assessed. Read more about this judgment in this blog.
What was at issue here?
An employee of a nursing institution repeatedly expressed negative views about the government’s corona and vaccination policy. In doing so, she made references to World War II, the Nuremberg Trials, and stated that the people administering vaccinations were war criminals. Her immediate supervisor has urged her to stop making these statements on LinkedIn, but the employee does not comply with this request. She argues that she is allowed to make these statements because of her right to freedom of expression. After several talks with the employer, an attempt at mediation and an official warning, the employer submitted a request for termination on the grounds of misconduct by the employee.
Freedom of expression is a fundamental right and is established in Article 7 of the Constitution and Article 10 of the ECHR. In assessing the question of whether a restriction of the right to freedom of expression in an employment relationship is permissible, the points of view given by the ECHR in the Herbai judgment can be taken into account. With respect to freedom of expression, one must look at:
- The nature of the statement that has been made;
- The motives of the employee;
- The damage, if any, suffered or incurred by the employer as a result of the employee’s expression;
- The severity of the sanction imposed on the employee.
Judgment of the Subdistrict Court
The subdistrict court ruled that the employee had indeed acted in a culpable manner and proceeded to dissolve the employment contract. An interesting point in his judgment is that he divides the messages on LinkedIn into two categories. The first category are messages that generally warn about the dangers of vaccinating with the aim of having a discussion about vaccination policy and its scientific basis. The second category includes messages that are specifically directed at people who participate in the national corona and vaccination program. According to the Subdistrict Court, only messages in the first category fall under the protection of the right to freedom of expression.
Judgment of the Court of Appeal
The employee in this case appealed. She argued that in determining the misconduct her right to freedom of expression was not sufficiently taken into account.
According to the Court of Appeal, there is nothing wrong with the employee’s intention. She states that she wants to contribute to the social debate. However, according to the Court of Appeal, her statements cannot be defined as opinion forming and/or informative and aimed at knowledge sharing and/or exchange of viewpoints. Her statements are particularly emotional, condemning and insulting. In this way these messages do not contribute to a social and/or scientific debate.
Furthermore, the Court of Appeal ruled that the very fact that the statements were made on LinkedIn is more likely to constitute culpable behaviour. This is because LinkedIn is a professional platform where she has connections with colleagues, business associates and family members of clients. According to her employer, she was therefore allowed to share the statements via Facebook or Instagram.
Two other points that the Court of Appeal took into account in its assessment were the fact that colleagues had experienced the content of the messages as hurtful and the fact that the employer in this case was a healthcare facility, which meant that the matter carried extra weight in this context. After all, the messages sent by the employee are diametrically opposed to the policy of the healthcare facility.
This ruling provides a clear framework of when an employer can intervene in employees’ social media use. On the one hand, the employee has a right to freedom of expression. On the other hand, the employer’s reputation may be at stake as a result. Important in assessing whether an infringement is justified are the nature of the messages, whether they contribute to the social debate and whether they are insulting or directed against persons. In the latter case, an infringement of the freedom of expression seems more likely to be fair. It also makes a difference which platform is used. In the case of a business platform such as LinkedIn, the employer is more likely to be able to intervene, according to the Court of Appeal.