Employees who live and work in countries and regions where freedom of expression is well recognized and protected often take it for granted. They assume it applies equally in their personal and professional lives; there lies the problem. The right to freedom of expression covers views that are controversial or even offensive, subject to exceptions for hate speech, for example. But it can’t be completely unlimited or left unchecked in the workplace. The issue for employers, then, is how to handle topics – such as geopolitical issues or diversity, equity, and inclusion – that may provoke strong reactions and potential conflict between employees.
The starting point is normally that employers can sanction employees who insult the company and/or insult or discriminate against other employees. This principle typically applies wherever the right to freedom of expression is recognized. But an employer’s ability to take action on the expression of views that don’t go that far depends on various factors and differs by jurisdiction. In most places, any action must be proportionate.
The European Convention
Article 10 of the European Convention on Human Rights guarantees the right to freedom of expression, including in the workplace. What you say and what you post, like, or publish online, even if it’s controversial, is generally protected in Europe as long as it’s worthy of respect in a democratic society and doesn’t conflict with the fundamental rights of others. While this protection extends to views that may be offensive to others, it allows governments – and by extension employers – to restrict the way an employee expresses themselves, to protect the rights and freedoms of others.
This requires a balancing act from employers. An overzealous response could lead to a dismissal being overturned by courts or a discrimination claim from an “offending” employee. On the other hand, not addressing controversial views could expose an employer to commercial and reputational risks, especially if an issue goes viral on social media.
Signatories to the European Convention all follow the same principles. The Netherlands relies on Article 10 of the European Convention along with Article 7 of the Dutch Constitution. Both guide an employer’s ability to interfere with an employee’s freedom of expression. Whether an employee is protected when they express their views depends on several factors. These include the damage caused to the employer or other employees and whether the employer’s response is proportionate. Article 10 plays a crucial role in courts in determining the action an employer can legitimately take. In one case, the Supreme Court ruled that the lower courts were wrong to dissolve an employment contract between a school and a teacher because the courts didn’t test if the teacher’s dismissal for publishing a book criticizing educational reforms was permissible under Article 10.
Common direction
The Dutch position is similar to the direction in which the United Kingdom is headed. Here, freedom of expression is shaped by various laws, including the Human Rights Act and the Equality Act, and by relevant case law. Freedom of expression became particularly controversial in the United Kingdom in the context of gender-critical beliefs – whether an employer can act when an employee’s beliefs conflict, or are perceived to conflict, with the rights of other protected groups, such as the trans community.
After some uncertainty, it’s clear that gender-critical views are protected as beliefs under the Equality Act, even if some people find them offensive. The courts are exploring how the Equality Act protection against direct and indirect discrimination interacts with freedom of expression in the European Convention. The Court of Appeal decision in Higgs v Farmor’s School, where a school dismissed a Christian administrator after complaints about her critical Facebook posts on same-sex marriage teaching in primary schools, is a landmark ruling, giving employers guidance on when it’s permissible to act against an employee who shares their beliefs outside the workplace on social media.
Outcomes vary
While the core protections are similar, approaches vary by country. Employees in Spain have a high degree of protection when expressing personal views outside work. An employer typically cannot take action about views expressed in a personal or private setting as long as the employee doesn’t imply their views are connected to their employer.
Article 5 of the German Constitution protects freedom of expression, including in the workplace. It guarantees employees the right to free speech while balancing the need for workplace civility. In other words, the right can be limited under certain circumstances.
In August 2023, the German Federal Labor Court upheld the dismissal of an airline employee who had shared in a private WhatsApp group sexist, racist, and insulting comments about colleagues after an earlier work disagreement. When part of the chat history was leaked to the works council and HR manager, the airline dismissed the employee with immediate effect. The court ruled the comments could justify dismissal because they violated workplace norms and expectations. In contrast, the Labor Court in Mainz decided a football club wrongfully terminated a player’s contract because of the views he expressed on social media. His posts had not created conflict with his team mates and fell within his right to freedom of expression.
Similar nuanced approaches can be seen in other European countries. In France, employees have a right to freedom of speech, though if their statements are insulting, offensive, excessive, or defamatory, an employer can take action depending on the circumstances. The Supreme Court repeatedly upholds Article 10 of the European Convention and has ruled to reverse several unjustified employee dismissals.
Freedom within reason
While the European and U.S. approaches differ, each recognizes freedom of expression as a basic right with some limitations. In the United States employers can generally restrict what employees say in the workplace, including prohibiting discussion of contentious topics, subject to certain exceptions. Employees are not free to harass or discriminate against other employees or affect the employer’s business or reputation. But employers can’t discipline employees for speech that’s protected by another law. The National Labor Relations Act, for example, protects employees’ rights to share grievances about wages, working hours, and other work conditions. Whistleblowing protection applies to matters such as disclosures about health and safety or the environment, for example, and an employer cannot retaliate against an employee for speaking out.
Similar to the United States, employees in Italy have the right to express their views inside and outside work within reason. Case law establishes whether an employer is entitled to take action against an employee for the way they expressed their views. It takes into account factors such as how the employee has expressed their views (fairly, politely) and whether it harms the employer’s reputation. In principle, an employer can dismiss an employee for expressing their views, even outside work. But it depends on the circumstances of each case.