11 April 2024

Criticism of the employer will not always be a basis for disciplinary termination

The European Court of Human Rights, in its judgment of 20 February 2024 (48340/20 Dede), found that disciplinary dismissal for providing critical information about the actions of a superior is contrary to Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which deals with freedom of expression.

The dispute arose after a Turkish employee sent an e-mail to a group of employees from the HR department criticising management methods at the workplace. He alleged, among other things, distancing by his supervisor, the use of biased criteria in the recruitment process, favouritism towards certain employees and a lack of action to improve the overall situation. The employer dismissed the employee on disciplinary grounds, as it considered the message to be an infringement of the supervisor's personal rights and a violation of work order.

Analysing the content of the email, the ECHR pointed out the lack of proportionality between the misconduct and disciplinary dismissal, as the employee's opinion did not contain vulgarities or hate speech and was reasoned.  The Court found that the interests of the parties, namely the employee's right to free expression and his employer's right to protection of personal rights, had to be fairly balanced. Accordingly, the ECHR found that Article 10 of the Convention had been violated.

The cited ruling may also set the course for interpretation of such behaviour in the jurisprudence of Polish courts. Expressing a negative opinion about a superior will not always constitute grounds for disciplinary dismissal.  When analysing critical statements made by employees as to whether they serve to terminate employment by way of disciplinary action, it will have to be assessed whether they exceed accepted norms and whether, as a result, the employer was exposed to harm.

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