Case study
Reactions to private statements
Work-related statements
Tools at hand

The use of the internet and social media has given individuals new arenas of expression and the opportunity to share their thoughts with a large audience. For employers, this can be both troublesome and harmful when employees use such online platforms to express themselves in a way that does not align with the company's values.

This article looks at the actions that employers can take when dealing with such statements made by an employee, in both a professional and private capacity.

Case study

On 2 December 2021, the board of the Norwegian University of Science and Technology (NTNU) decided to enter into a settlement agreement with Øyvind Eikrem, an associate professor in the NTNU's Department of Social Work. This happened after the employment committee decided to dismiss Eikrem in Summer 2021 due to statements that he had made outside work.

The dean recommended that the dismissal decision be upheld, but the board instead chose a settlement solution which, among other things, would mean that the associate professor would resign voluntarily from his position in exchange for financial compensation.

In 2018, Eikrem had been interviewed in his spare time by the right-wing radical website Resett, wherein he made critical statements about immigration and crime. The statements provoked reactions among the department's students, colleagues and management, with several among them believing that the department's reputation had been damaged.

Later, an investigation was conducted and it concluded that Eikrem had disposed of one or more anonymous Facebook profiles that had been used to publish xenophobic statements and other forms of hate speech. Eikrem himself denies having disposed of the profiles.

Reactions to private statements

The Eikrem case illustrates the difficult trade-offs that employers face when employees make unpleasant statements that are contrary to a company's attitudes and values. There are two factors to consider:

  • the company's reputation, customers (students) and other employees; and
  • the employee in question's freedom of expression.

In most cases, freedom of expression prevails. The main rule is, therefore, that the employer cannot control, limit or react to statements made by the employee as a private individual. Freedom of expression is an overriding human right that is protected by both the Constitution and international conventions.

However, there are limits to what an employer can tolerate as regards employees' public statements. Both statutory and contractual provisions on the duty of confidentiality can limit what an employee can say in a specific case or about business-sensitive matters. The employee's duty of loyalty to the employer can also be a basis for reacting to statements that may harm the company's objectives and legitimate interests.

For example, the employer must be able to intervene if an employee makes derogatory or harassing statements about the management or the company's services. However, it is the employer that has the burden of proof, and that must be able to document that the statement damages the factual and legitimate interests of the company.

Whether the employer can intervene depends on a specific assessment. Central to the assessment is the content of the statement in question. If the expression is political, it is strongly protected by freedom of expression. This also applies to political perceptions that are perceived as provocative and strongly different from the mainstream. Such protection is also strong when the statement is based on the employee's specific professional competence and is thus suitable for informing public debate.

On the other hand, unreasonable and insulting statements are not as strongly protected by freedom of expression. If the statement is punishable, the employer has more scope to take action. However, a private, criminal statement should not have automatic consequences for the employment relationship. This topic was raised in the NTNU case, where the dean in his recommendation pointed out that some of the statements Eikrem could allegedly be held responsible for were subject to the Penal Code's ban on hate speech.

The type of business in question and the type of position that the employee has is also important for the assessment. In case law, it has been emphasised that public employees may have to endure greater restrictions on freedom of expression than private employees. At the same time, public employees will often have insights that are suitable for informing public debate, which suggests that there is large scope for causing controversy. This applies in particular to employees within academia.

In private enterprises, it may also be necessary to consider certain financial and business conditions that are not as prominent in the public sector. Statements are often more harmful when made by people who are more closely associated with the business; therefore, managers may have to endure somewhat stronger restrictions on freedom of expression than employees who are lower in the hierarchy.

Work-related statements

While freedom of expression is the main rule that applies when an employee speaks privately, this is not the case where the employee speaks in the capacity of their role in the company or on behalf of the company. In such a situation, the employer has the right to exercise control. Thus, it is important that the employer decide both which employees will speak publicly on the company's behalf and what is to be communicated.

The employer can also, by virtue of their right to manage, set a framework for how internal employee communications should be structured, for example, through general guidelines for courtesy and language use. Nevertheless, such restrictions must be justifiable.

Tools at hand

If the employer believes that there is a reason to react to an employee's statements, the type of reaction must first be determined. Dismissal – as was the reaction in the NTNU case – is the most severe approach that the employer can take with an employee and can only be used in exceptional cases. The more obvious alternatives to this include addressing the employment relationship and possibly giving a formal warning.

Another possible approach, which is not provided for under labour law, is for the employer to respond with a counterstatement. If such a statement does not conflict with the duty of confidentiality and care towards the employee, or other rules, the employer is also covered by freedom of expression.

In principle, this means that the management or other employees are free to make counterstatements that show that the company is not in agreement with the employee's statements. However, this presupposes that the counterstatements are factual contributions to the relevant debate and not a covert labour law reaction.

For further information on this topic please contact Ole Kristian Olsby or Nina Elisabeth Thjømøe at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby | Littler website can be accessed at