Freedom of speech applies to employees
Reasonable criticism is acceptable
Context matters
Blessing and curse of social media
Guide and benefit
In the age of social media, employers are not safe from the backlash against controversial posts made by employees on their personal accounts. It is not always clear if and when the employer can take action based on opinions expressed in their employees' free time, but providing clear guidance for online conduct can protect both parties from potential disputes.
Freedom of speech applies to employees
In principle, an employee has the right to keep their private life and work life separate, and the employer is not entitled to supervise or control the employee in their free time. The employee's right to express their opinion is also protected by the constitutional freedom of speech, meaning that the employer should only intervene if they have a justifiably sufficient reason.
Nevertheless, the employee's freedom of speech is not unlimited. The employee loyalty obligation stipulates that the employee must avoid anything that could substantially harm the employer's business operations. The loyalty obligation extends to free time, which requires the employee to consider how their actions may affect their employer.
Reasonable criticism is acceptable
The loyalty obligation does not mean that an employee should accept the actions of their employer without objection. Employees have the right to criticise and make public statements that differ from their employer's views without the employer having the right to intervene in the employee's private life.
However, not all criticism deserves protection and the courts have drawn a line between justified criticism and slander that solely attempts to harm the employer. In one case, the Labour Court held that an employee of the city was entitled to publicly criticise a set of measures planned by the city. The matter was still pending before the city council and the employee's criticism was seen as an attempt to influence public opinion. However, when the employee continued to criticise the measures after they had been implemented, the Court found that the criticisms no longer had any motive other than to harm the employer, and that the city had the right to dismiss the employee due to a breach of the loyalty obligation.
Even if the criticism is directed at a pending matter, the employer does not have to tolerate potential slander. For example, the European Court of Human Rights has previously ruled that a caricature degrading an employer was offensive and the employee responsible for its publication could be legally dismissed on that basis.
The extent to which an employee can exercise free speech in their private life depends on the nature of their position and whether their comments directly implicate their employer. When an employee can be clearly linked to their employer, their liability increases.
In an assessment of the appropriateness of an employee's comments on a television entertainment programme, the Labour Court highlighted that the employee had mentioned their employer by name. As the employee's racist comments and criticisms of the employer's values directly implicated the employer, the Labour Court held that terminating the employee's contract was a legitimate measure.
In the case of employees who are required to be public figures, they may be unable to express any personal opinions without implicating their employers. It may be more challenging in such cases to determine the existence of an intent to harm an employer.
Blessing and curse of social media
While social media has generated a societal shift, the law has remained the same. It assesses comments made by an employee on an online platform using the same criteria as any other view expressed in public. However, a comment made on social media can reach a much larger audience than a letter sent to the opinion page of a local newspaper.
Sometimes the message can spread much further than the employee had intended. When a joke originally addressed to a small group of followers suddenly gains wide-spread attention, employers should remain calm and consider the employee's intention when deciding what action to take. An offence due to lack of knowledge should be treated less severely than deliberate and intentional harm to the employer.
While employers do not have the right to manage employees during their free time or oblige them to maintain their social media accounts in a particular way, this does not mean that the employer should ignore the matter altogether. The employer may provide guidelines on how employees should present themselves in public. Guidelines and values that are communicated to employees put the employer in a much stronger position if disciplinary action is required.
Despite the potential challenges that arise, it is important to remember that there can be advantages to helping employees conduct themselves responsibly online. Some professions, such as pilots and insurance sellers, have been seen to benefit from an active presence on social media.
For further information on this topic please contact Jouni Kautto at Waselius & Wist by telephone (+358 9 668 9520) or email ([email protected]). The Waselius & Wist website can be accessed at www.ww.fi.