Did dismissal for publishing personal blog posts violate an employee’s right to freedom of expression? Many employers are concerned about reputational damage, breach of confidentiality and discrimination, which may arise from their worker’s social media/internet activity. However, although courts and tribunals have generally been sympathetic to employers exercising a degree of control over the online activity of their staff, this must always be balanced against the worker’s right to freedom of expression. For example, as we reported earlier this year, the Court of Appeal was keen to support freedom of speech when it upheld a judicial review application brought by a trainee social worker excluded from his course on the basis that his social media postings rendered him unfit to practice.
The European Court of Human Rights (ECrtHR) has recently held that the dismissal of an employee for personal blog posts violated his right to freedom of expression. The employee, H, an HR manager for a Hungarian bank, published two blog posts on HR strategy and tax rates. The posts described H as an HR expert for a large bank (but did not mention the bank’s name). The bank dismissed H on the basis that H’s conduct in publishing the blog posts breached its confidentiality standards and damaged its economic interests. The Hungarian Supreme Court upheld the fairness of H’s dismissal. H brought a complaint before the ECrtHR arguing that the termination of his employment had breached his right to freedom of expression.
The ECrtHR held that in the context of an attempt by an employer to restrict a worker’s freedom of expression, it was necessary to consider the: • nature of the speech: H’s posts had been aimed at HR professionals (rather than the public at large) but this did not prevent the right to freedom of expression being engaged; • motives of the author: H’s motive was simply to share knowledge with a professional readership; there was no question of H having any personal grievance or sense of antagonism; • damage caused to the employer: the bank had failed to demonstrate how H’s blog posts could have adversely affected its interests; and • severity of the sanction imposed: the bank had imposed a severe penalty (dismissal) without any lesser sanction being considered. Having considered those factors, the ECrtHR found that the Hungarian domestic courts had failed to carry out the requisite balancing exercise between H’s right to freedom of expression and the bank’s rights to protect its legitimate business interests. (Herbai –v- Hungary  ECHR 793)In the European Court of Justice (ECJ): Holiday carry-over due to sickness can be limited to four weeks: All workers are entitled to 5.6 weeks’ annual leave (made up of 4 weeks’ holiday deriving from the Working Time Directive (WTD) and 1.6 weeks’ holiday deriving from the Working Time Regulations (WTR). Workers on long-term sick leave are entitled to carry forward the 4 weeks’ WTD holiday and to be paid for this leave on termination, even if they are absent due to illness for an entire leave year and even if they do not request to carry the leave forward in advance of the leave year coming to an end. However, this leaves the question: does this right to carry-over extend to any additional leave granted by the contract or to the additional 1.6 weeks’ WTR holiday? The EAT has previously held that the additional 1.6 weeks WTR holiday does not need to be carried over, unless this is permitted by a relevant agreement, such as an individual’s contract of employment. The ECJ has recently considered whether the EU Charter of Fundamental Rights (Charter), taken together with the WTD, precludes a national law or collective agreement from limiting the amount of holiday which can be carried over in the event of sickness to the 4 weeks’ WTD holiday. The ECJ was considering two joined claims brought by Finnish trade unions, in which they argued that the Charter should be read together with the European case law on the WTD, to require that any additional holiday entitlement under national law or collective agreements (over and above the 4 weeks’ WTD holiday) should be subject to the same carry-over rules. The ECJ held that, where EU member states grant additional leave (over and above the 4 weeks’ WTD leave), they are free to set the conditions of any carry-over of that additional leave. The ECJ has therefore confirmed that the approach taken by the EAT is correct; employers can limit the carry-over of unused holiday in sickness cases to the 4 weeks’ WTD leave. (Terveys- ja sosiaalialan neuvottelujarjesto (TSN) ry –v- Hyvinvointialan liitto ry and Auto- ja Kuljetusalan Tyontekijaliitto AKT ry –vSatamaoperaattorit ry  EUECJ C-609/17)
In the Supreme Court: claim and held that J had been automatically unfairly dismissed. The EAT held that there was no reason why the hidden motives of someone, who then manipulated an ignorant and innocent decision-maker into dismissing, could not be attributed to the employer and render the dismissal automatically unfair. However, the Court of Appeal later overturned the EAT’s decision and restored the tribunal’s decision to dismiss J’s automatically unfair dismissal claim. J appealed to the Supreme Court, which unanimously upheld the appeal and reinstated the EAT’s decision that J had been automatically unfairly dismissed. The Supreme Court held that, in searching for the reason for a dismissal, courts need generally look only at the reason given by the decision-maker. However, where the real reason is hidden from the decision-maker behind an invented reason, the court must penetrate through the invention. If a person in the hierarchy of responsibility above the employee determines that they should be dismissed for one reason, but hides the true reason behind an invented reason, which the decision-maker unwittingly adopts, the reason for the dismissal is the hidden reason, rather than the invented reason. The hidden motives of someone other than the decision-maker can render the dismissal automatically unfair. The Court recognised that this principle extended beyond whistleblowing cases; the same principle can apply to any unfair dismissal claim. (Royal Mail Group Ltd –v- Jhuti  UKSC 55) In the Court of Appeal: In a whistleblowing claim, should the worker give evidence to show that they believed their disclosure was in the public interest? To bring a whistleblowing claim, a worker must show that they disclosed information based on their reasonable belief that wrongdoing had happened (or was happening, or was likely to happen) and that it was in the public interest to make the disclosure. The Court of Appeal has recently considered whether the application of the ‘public interest’ test means that the worker must have the opportunity to give evidence on their subjective belief that their disclosure was in the public interest. I, who worked as an interpreter in a hospital, asked a senior manager to investigate rumours circulating among patients and their families that he was responsible for breaches of patient confidentiality because he wanted to ‘clear his name’. The manager referred I’s complaint to HR, who investigated and rejected it. I was later dismissed and he brought claims, including one of detriment, for having made a protected disclosure. After the conclusion of the tribunal hearing and the lodging of written submissions, but before the tribunal’s judgment, the Court of Appeal had held in another case (Chesterton) that considering the ‘public interest’ aspect of a whistleblowing claim involves a two-stage test: (a) did the worker believe, at the time of making a disclosure, that it was in the public interest? (b) was that belief reasonable? The employment tribunal dismissed I’s whistleblowing claim, among other reasons on grounds that his disclosures were not made in the public interest. On appeal, the EAT held that the tribunal had permissibly concluded that I had no subjective belief in the public interest. The Court of Appeal upheld I’s appeal and overturned the EAT’s decision. With the benefit of hindsight, and in light of Chesterton, the tribunal should have directly asked I whether at the time of his disclosures he believed he was acting in the public interest. I was unrepresented and the tribunal was under an obligation to ensure he had a proper opportunity to explain his case. I’s evidence had established that his motive was to clear his name and restore his reputation, but had not considered if I held the subjective belief that this was in the public interest. Motive and genuine belief in public interest are not the same thing. The evidence before the tribunal had not covered the critical public interest point. The Court has therefore sent the claim back to the tribunal to hear evidence from I on the public interest issue. (Ibrahim –vHCA International Ltd  EWCA Civ 2007) hilldickinson.com Did a trade union interfere with a secret strike ballot? When a trade union ballots its members for strike action, all members who are entitled to vote must be allowed to do so without interference from the union or its members, representatives or employees. The Court of Appeal recently considered what constitutes ‘interference’ by a trade union in a strike ballot. The Communication Workers Union (CWU) had balloted its members for strike action, which had won the approval of the members. However, the CWU had used social media to encourage its members to intercept their own ballot papers at the delivery offices where they worked and complete them in their workplace. The employer, Royal Mail, successfully applied to the High Court for an injunction to prevent the strike action, on the basis that the CWU’s conduct had interfered with the ballot process. A fair ballot requires every balloted member to have a ballot paper sent to his or her home address (to allow them to vote in secret, away from the pressures of the union and members). The High Court granted the injunction. The High Court held that, by encouraging members to intercept their ballots, CWU had improperly interfered with the ballot (but this did not amount to intimidation of members). Filming members filling out their voting papers in a staff canteen also meant that the requirement for members to vote in secret had been breached. The Court of Appeal dismissed the CWU’s appeal. The Court of Appeal held that conduct would be an ‘interference’ with the ballot, if it has the effect of preventing or hindering the ordinary course of voting; this is not limited to intimidation, coercion, fraud or similar. The High Court had been correct to hold that the legislation requires employees to receive their voting papers at home, so they can vote secretly outside of the workplace. By encouraging its members to intercept their ballots, CWU had interfered with the secret strike ballot. However, the video footage of a small number of members voting in a staff canteen would not have amounted to a breach on its own. (Royal Mail Group Ltd –v- Communication Workers Union  EWCA Civ 2150)