An employee of a care institution for the elderly expressed negative views on social media about the employer's vaccination policy. The employer was of the opinion that this was a case of culpable conduct and requested that the employment contract be dissolved. The employee took the view that this was a matter of freedom of expression. Who was right?

Facts

Since 7 August 2017, the employee has been employed by Stichting de Waalboog (hereinafter 'De Waalboog'). Her position is staff employee for knowledge management. De Waalboog is a care institution specialised in complex (elderly) care and behavioural problems. Since the beginning of 2020, the corona pandemic has had a major impact on the living situation at De Waalboog. It has followed the national policy for combating this pandemic and has taken measures on that basis, including vaccinating both clients and staff. Nurses within De Waalborg implement the vaccination policy (i.e. vaccinate themselves). The purpose of the position of employee at De Waalboog is to support and develop the knowledge infrastructure of De Waalboog. The main issue is whether the employee, by posting and/or sharing messages on LinkedIn, in particular in view of the tone of those messages, has acted in a culpable manner towards De Waalboog and if so, whether that should lead to termination.

Judgment

The first point to note is that, as the employee argued, she has a right to freedom of expression. However, the right to freedom of expression is not unlimited, also in the employment relationship. It finds its limit in the obligation of the employee to behave as a good employee. In the Herbai judgment (ECHR 5 November 2019, no. 11608/15, JAR 2020/18), the European Court of Human Rights identified four aspects that play a role in assessing this. These aspects are the nature of the expression, the motives of the employee, the damage suffered by the employer as a result of the expression and the severity of the sanction imposed.

Nature of the expression, motives and damage

Roughly speaking, the employee posted and/or shared two kinds of LinkedIn messages. First of all, there were messages in which she warned in general about the dangers of vaccinating against COVID-19 with the aim of stimulating a discussion about the vaccination policy and its scientific basis. The Subdistrict Court established that with these messages the employee wished to participate in a social debate, in which she wished to express her personal viewpoint, because of her concerns about the worldwide and national approach of the COVID-19 crisis. No facts and/or circumstances have been submitted from which it appears that the employee has a personal objective or motive with the expressions she has made. Nor has it been established that there is any personal grudge or financial gain. Finally, it has not been established that De Waalboog has suffered damage as a result of these messages. Posting and/or sharing these messages therefore falls under the freedom of speech and De Waalboog will have to tolerate this. However, the employee has also posted and/or shared messages specifically directed against people who cooperate with the national (vaccination) policy, which is also implemented by De Waalboog, in which she calls these people (war) criminals who are personally liable for their actions, in which vaccinating is labelled as genocide and/or in which she draws comparisons with the Second World War/Jewish persecution. These statements do not qualify as moderate, opinion-forming and/or informative and aimed at sharing knowledge and/or exchanging views, as she herself claims, but as emotional, condemning and insulting. By posting these messages, the employee has crossed a line that was not necessary for the objective she pursued, while their content may be or has been offensive to her own colleagues. Her defence that she did not specifically mention these colleagues cannot help her in this respect. The Subdistrict Court does not see why colleagues who are directly involved in the vaccination programme within De Waalboog and/or who carry out vaccinations themselves should not feel offended. Therefore, as a good employee, the employee should not have made these statements public. In this respect it is important that she chose to do so on a business network, whereby it was mentioned on her profile that she works at De Waalboog. The Subdistrict Court further established that complaints were made about the content of the messages at De Waalboog. This means that the messages actually had harmful consequences within De Waalboog. For that reason alone, the employee's argument that there can be no question of damage because she has created sufficient distance between her (private) LinkedIn messages and De Waalboog does not hold water, apart from the question of whether she did so in time, since the messages had already been posted some time before. The statements are therefore - taking into account the right to freedom of expression - in breach of good employment practice.

The Seriousness of the Sanction Imposed

The next question is which sanction is appropriate. In view of the nature of her position and her level of education, the employee may be expected to know how to conduct a substantive (scientific) debate. Although it cannot be established that De Waalboog has addressed the employee on the tone she used, she should have known in any case that the insulting and condemning messages do not belong in such a debate. She should have been aware of the fact that this could be hurtful to her colleagues and that her choice to do this on a business network, where there were colleagues among her followers, meant that they would probably read these messages. In addition, from the very beginning when she was approached about the messages, the employee showed no willingness to change her behaviour. Not even after she had received an official warning on 22 January 2021. She has not shown that she understands that she has gone too far in her tone of voice in a number of messages; she has never distanced herself from their contents. In so doing, she has also made no attempt to repair the damage already inflicted. Under these circumstances, De Waalboog can no longer reasonably be required to continue the employment contract. This means that the employment contract will be terminated due to culpable conduct on the part of the employee. De Waalboog has acknowledged that the employee is entitled to payment of the statutory transitional allowance. In view of an end to the employment contract on 1 October 2021, De Waalboog will be ordered to pay the statutory transitional compensation of € 4,801.23.

Summary

Corona and labour law continue to create bottlenecks, which means that it is not always clear to employers and employees what is allowed and what is not. The employment lawyers at SPEE advocaten & mediation will be happy to assist you.