Employee’s Human Right of freedom of expression vs their confidentiality obligations - Herbai v Hungary

The European Court of Human Rights (‘ECtHR’) holds that an employee’s right to freedom of expression had been violated by their employer after they were dismissed for publishing blog posts on his website relating to their work.

Facts

The employee worked for a Hungarian bank as a Human Resources Management Expert. He set up a knowledge sharing website for HR professionals and posted articles. He described himself as an expert in HR management who worked for a large bank, but did not identify the bank. The employee posted two articles on the blog, on HR strategy and tax rates, and was dismissed due to breach of the banks confidentiality standards, as he was under an obligation not to publish formally or informally any information relating to the activities of his employer.

The Hungarian Supreme Court agreed that his conduct could have endangered the bank’s business interests and led to him sharing confidential information and upheld the dismissal. The employee appealed to the ECtHR, arguing that the termination of his employment breached his freedom of expression under Article 10.

Decision

The ECtHR set out four principles relevant to the restriction of the right of free speech in the context of an employment relationship:

  • The nature of the speech

The Court held that domestic courts had erred in considering that Article 10 was not engaged because the published comments were addressed to HR professionals, rather than to the public as a whole. It noted that ‘workplace-related free speech does not only protect comments that demonstrably contribute to a debate on a public matter’.

  • The motives of the author

The Court noted that acts motivated by a personal grievance or antagonism would not justify a strong level of protection. In the present case however, it was highlighted that the applicant did not act in purely private interests and the articles were published with the intention of sharing knowledge.

  • The damage caused by the speech to the employer

The Court held that no attempt had been made by the bank or the Hungarian Supreme Court to demonstrate how the speech had adversely affected the business interests of the bank.

  • The severity of the sanction imposed

The Court decided that the sanction of dismissal was a rather severe sanction, imposed without assessing whether any less severe measures were available instead.

Taking into account the above principles, the ECtHR held that the domestic courts had failed to carry out a balancing exercise between the applicant’s right to freedom of expression and the employer’s rights to protect its legitimate business interests. They therefore did not discharge their positive obligations under Article 10 of the convention, to protect the right to freedom of expression, even in the sphere of relations between individuals.

Implications for employers

The decision demonstrates that contractual restrictions placed on an employee, such as confidentiality, may be overcome by fundamental human rights such as the right to freedom of expression and any restriction of this right must be necessary and proportionate.

It is advisable to implement a social media policy setting out expectations on what employees can and cannot post. It is essential this is not too strict and takes into account an employee’s right of free speech. The case is also a reminder of the importance of having sufficient evidence when taking the decision to dismiss an employee as well as the factors the courts will take into account when balancing the rights of the employee and employer.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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