Labor law limits on freedom of expression

The District Court for Zeeland-West-Brabant recently issued an interesting judgment (click here, in Dutch only) about freedom of expression within employment relationships.

In this case, an intensive care nurse at the Elisabeth-Tweesteden Hospital (ETZ) was given a warning for posting on social media comments that doctors were “brainwashed”. In its warning to the employee, the ETZ referred to its social media code of conduct and asked the nurse to consider the interests of the ETZ as well as the consequences that his comments could have for the image of the ETZ and his relationships with his colleagues.

Interview, despite the warning

Despite this warning, the employee took the initiative to give an interview about the way COVID-19 patients were being treated at the ETZ. During the interview, he also mentioned details about the patients, including deceased patients, albeit without naming names. In response, the ETZ suspended the nurse and asked the sub-district court to dissolve his employment contract without awarding a transition payment on the grounds of seriously culpable conduct. In his defense, the nurse argued on behalf of freedom of expression and indicated that he wanted his employment at the ETZ to continue.

Sub-district court

The sub-district court held that freedom of expression was not unfettered. The judge referred to the Herbai judgment of the European Court of Human Rights (ECHR), where the Court held that there were four important elements when deciding whether it was permissible to restrict the right to freedom of expression in an employment relationship. These elements are:

  1. the nature of the comment that was made;
  2. the employee’s motives;
  3. the potential loss that the employer might sustain because of the employee’s comments; and
  4. the severity of the sanction imposed on the employee.

The sub-district court held that the intensive care nurse had overstepped the limits of freedom of expression by sharing detailed information about patients, including deceased patients. This was unacceptable and also in breach of the social media code of conduct and the Individual Healthcare Professions Act (Wet op de beroepen in die individuele gezondheidszorg), which imposes a duty of confidentiality on care providers.

Freedom of expression has its limits

While freedom of expression is a fundamental right, we think that this judgment is correct. The European Convention on Human Rights dictates that freedom of expression can be subjected to a range of specific formalities, conditions, restrictions or penalties set out in the law and necessary in a democratic society, in the interests, for instance, of protecting the good reputation or rights of others and of preventing the dissemination of confidential information.

The Dutch Supreme Court will also be ruling on this issue soon. That case deals with a member of a works council of a Regional Education Centre, who published a book criticising personalised education. We will issue a further note as soon as the Supreme Court has handed down its judgment.

Sander Theunissen (st@clintlegal.com / +31 20 820 0330)