Every now and again you read about a case which makes you wonder whether you have just been spending time with Alice in Wonderland. The European Court of Human Rights (ECHR) has recently delivered such an out-of-body experience relating to freedom of speech where an employee “bad mouthed” his employer in the national press.
Mr Rubins was a Professor of Medicine at Riga University in Latvia. He got upset because his University decided to merge with another and the merger anticipated changes to his employment contract. Mr Rubins was not happy. So he sent a series of emails to the University top brass in which he:
- criticised the “lack of democracy and accountability in the University’s leadership”;
- complained about a lack of checks and balances in management decision-making;
- alleged mismanagement of the University finances;
- criticised the conduct of members of the University management; and
- proposed his own remedial amendments to the University’s constitution.
Clearly he was not on a mission to make friends among the University’s senior management team. He then sent an email (strangely entitled “Settlement”) to the University Rector in which he proposed alternative methods to resolve his employment dispute, being essentially that things were done his way and no other. He made his intentions very clear when he threatened that if the University did not agree to his demands, he would go right through the Latvian legal system with his case and at the same time to go public with his complaints. When his “settlement offer” was declined, Mr Rubin, clearly being a man of his word, went to the national press with his allegations. Following an investigation which substantially dismissed his concerns, he was sacked for gross misconduct.
In common with that of many EU countries, Latvian law imposes a duty of loyalty on all employees. It also requires them to exercise “reserve and discretion” in relation to their employment. So it will come as no surprise that the Latvian courts consistently concluded that Mr Rubins was lawfully dismissed for his conduct in making inappropriate and unreasonable demands and threatening the University in which ways which seemed to fall little short of blackmail.
Mr Rubins was undeterred. Off he went to the ECHR on what must have seemed all round like a losing ticket. However, to the surprise of all concerned, probably including Mr Rubins, the ECHR decided by a majority of 5 to 2 that his dismissal was an infringement of his “human right” of freedom of expression.
The ECHR concluded that even though the Latvian courts which had heard all the actual evidence had decided the reason for his dismissal was his inappropriate threats to his employer (which were contrary to his duty of loyalty etc.), the real reason was in fact his expression of his opinions about the University and, in particular, its management. The ECHR commented that freedom of speech was so fundamental to a democratic society that people had a right to “offend, shock or disturb” others.
Human rights law is all about proportionality and balancing the rights of the parties. But what about the rights of the University which, perhaps understandably, expected a modicum of restraint and loyalty from its employee – however angry he was about not getting his own way? In the UK, the courts are willing in some cases to draw a distinction between the fact of whistleblowing (expression of opinion) and the way the employee goes about it. So in Evans v Bolton School, the Court of Appeal held that a teacher was fairly dismissed, not for expressing his view that his employer’s computer system was wide open to hackers, but the way he went about demonstrating it – by personally hacking into the system. That seems to give a more measured balancing of respective rights than the purist approach now adopted by the ECHR.
The Court seems to have put some reliance on the fact that as the University was publically funded, the expression of opinion by Mr Rubins overrode his duty of loyalty because it was “in the public interest” to hear his views. This seems, with respect, more than slightly tenuous. There is nothing implicit in being a public sector employee that your personal grievances and grudges will be of any interest to the public, any more than that in the private sector they won’t. The principle of freedom of speech should not be different depending on whether you work in the public or private sector.
Whatever we might think of the merits of this Decision, it says what it says. Does it mean that employees in the UK and other EU jurisdictions can now say what they want to whom they want in furtherance of their own workplace agendas and yet be immune from action by their employers? We think not – there is too much accrued jurisprudence across Europe to the effect that rights must be balanced (not least in the ECHR’s own rulings on the UK’s “crucifix cases”). These cases are always very fact-specific and this one seems to turn not on what Mr Rubins said, or even to whom, but on the factual finding that the University did not dismiss him for the reasons it had claimed. If we draw a veil over the question of how the ECHR could second-guess both the evidence and the entire Latvian legal system in making that finding, however, the case then becomes a very ordinary whistle-blowing retaliation issue, and of little general application elsewhere.