Will Dismissing an Employee for Blogging About Work Violate Their Human Rights?
In some cases, yes. The European Court of Human Rights (ECHR) has confirmed that an employer violated an employee's right to freedom of expression when dismissing him for publishing personal blog posts in relation to his work.
What Happened?
Mr Herbai, an employee of a Hungarian bank, published blog posts on his personal HR management knowledge-sharing website. The website described him as an expert in HR management who worked at a large bank. However, it did not mention the bank's name.
The bank dismissed Mr Herbai as it considered that in posting the blogs he had damaged its economic interests and breached its confidentiality standards.
Mr Herbai argued that his dismissal breached his freedom of expression rights under Article 10.
A Balancing Exercise
The ECHR balanced the employee's rights to freedom of expression against the bank's rights to protect its business interests and identified four key elements for assessment:
- Nature of the Speech
The court noted that freedom of speech does not only protect comments on a public matter, it could also apply to comments made to a specific group, such as HR professionals as in this case. - Motives of the Author
There was no question of personal grievance or antagonism behind the blog posts. It was simply to share knowledge with a professional readership. - Damage Caused to the Employer
The bank had made no attempt to demonstrate how the speech could have caused damage to their interests. - Severity of the Sanction Imposed
Mr Herbai had suffered a severe penalty as he had been dismissed without a lesser sanction being considered.
On consideration of these four elements the ECHR found that the employer did not demonstrate a justification for restricting Mr Herbai's right to freedom of expression and therefore had violated his rights under Article 10.
What Can You Learn from This?
This case is a reminder that even when there are contractual or other legal provisions governing an employee’s ability to share information, their right to freedom of expression will be a relevant factor when considering the legality of any action taken against the employee, such as a dismissal.
It also provides useful confirmation of the elements the courts will consider when balancing the rights of both the employer and the employee. Restricting an employee's right to freedom of expression must be necessary and proportionate.
If employers are to do so, they should ensure they have sufficient evidence to justify their actions. Of course, each case will vary depending on the facts, however in this case applying the four elements, the dismissal was not justified.