213: Dismissal for publishing personal blogs breached employee’s right to freedom of expression

In the recent case of Herbai v Hungary, the European Court of Human Rights has ruled that an employee’s right to freedom of expression was breached when he was dismissed for publishing blogs on a personal website which related to his work in HR.

Mr Herbai worked as an HR management expert at a Hungarian bank and was involved in the bank’s reform of remuneration policy. He was subject to a code of ethics which included an obligation not to publish formally or informally any information relating to his employer’s activities. Outside work, Mr Herbai ran a knowledge-sharing website for HR managers. The website described him as an HR expert and stated that he worked in a large domestic bank but did not name his employer. He was dismissed after the bank became aware of blog posts he had published on HR strategy and tax rates. The bank argued that the website infringed its economic interests and that publication of this HR information could have interfered with its business interests. Mr Herbai challenged his dismissal, alleging that the bank had breached his right to freedom of expression under Article 10 of the European Convention on Human Rights.

The Hungarian Labour Court upheld Mr Herbai’s dismissal, ruling that the website and the content of two articles amounted to a breach of the duty of mutual trust. On appeal, the Hungarian High Court disagreed, ruling that his dismissal was unlawful since the articles only discussed HR policies in general terms and could not be linked to the bank. It also noted that the website was only concerned with knowledge-sharing for HR professionals and had not jeopardised the bank’s business interests. However, the Hungarian Supreme Court then upheld the dismissal, and Mr Herbai appealed to the European Court of Human Rights.

The European Court held that the domestic courts had failed to protect Mr Herbai’s freedom of expression. In particular, they had failed to carry out a proper balancing exercise between his right to freedom of expression and the bank’s right to protect its legitimate business interests. The European Court set out four factors relevant to the restriction of free speech in the context of an employment relationship:

• the nature of the speech;
• the motives of the author;
• the damage caused to the employer; and
• the severity of the sanction imposed.

Given the increasing tendency for personal views to be expressed through all forms of social media, it is vital that employers implement social media policies setting out clear expectations of what can and cannot be published outside work. However, this decision illustrates that an employee’s contractual duty of confidentiality to their employer is also subject to their right to freedom of expression. This can be a difficult balancing exercise, involving consideration of the factors set out by the Court, in particular, the employee’s motives and whether actual damage has been caused to the employer. It is also worth noting that there is still uncertainty about the extent to which the UK will continue to take account of the rulings of the European Court of Human Rights after Brexit.