Human rights, employment and social media

In the case of Herbai v Hungary, an HR manager, Mr Herbai, was dismissed following his two blog posts on HR strategy and tax rates. In his blog, Mr Herbai described himself as an HR expert in management at a large bank. When this came to his employer’s attention, he was dismissed on the grounds that his conduct had damaged the bank’s economic interests and breached its confidentiality standards.

The Hungarian Supreme Court upheld the bank’s decision to dismiss Mr Herbai on the grounds that his conduct had endangered the bank’s business interests.

Mr Herbai appealed the decision because the termination of his employment had breached his freedom of expression rights under Article 10 of the Human Rights Act.

Article 10 confirms an individual’s right to freedom of expression and information, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”. This right includes the freedom to hold opinions and to receive and impart information and ideas.

The court considered four elements relevant to the restriction of free speech in the context of an employment relationship:

1. The nature of the speech
   The court rejected the bank’s argument that Article 10 did not apply as the published comments were addressed to HR professionals rather than the public.
2. The motives of the author
   The motive was simply to share knowledge with a professional readership.
3. The damage caused by the speech to the employer
   The bank made no attempt to demonstrate how the speech could have adversely affected its interests.
4. The severity of the sanction imposed.
   Clearly, Mr Herbai had suffered a severe penalty, as he had been dismissed without any lesser sanction being considered.

The European Court of Human Rights found that the Hungarian courts had failed to balance an individual’s right to freedom of expression and an employer’s right to protect its legitimate business interests. They, therefore, did not discharge their positive obligations under Article 10.

Employers need to be vigilant so as not to violate employees’ rights in relation to freedom of expression. It is always advisable to take legal advice before dismissing an employee.

If you have a query about the dismissal of an employee or any other employment enquiries, call Karen Cole today.

Note: This is not legal advice; it provides information of general interest about current legal issues.