Can employee express unlimited views on Israel and Gaza?

The Rotterdam District Court [Rb. Rotterdam, 19-01-2024, ECLI:NL:RBROT:2024:571] recently ruled in favour of the employee after the employer initiated proceedings against the employee for posting on LinkedIn her opinion about the war between Israel and Gaza. The employer and employee entered into a discussion about this, with the employer requesting to terminate the employment contract the next day. The employee did not agree and angrily walked out of the conversation. Later, the employee reacted again on LinkedIn to a post by someone with standing in the investor world, now precisely her employer’s field of work. Now the Rotterdam District Court has ruled on this last month.

The employer based the dismissal on the grounds of culpable conduct and a disturbed working relationship. The employee, in turn, argued that there was serious culpability on the part of the employer. The court ruled in the employee’s favour. Her reaction on LinkedIn was called “awkward”, but not such that it was seriously culpable. You can read more about this ruling in this article.

Freedom of speech

Freedom of speech is the starting point for this. Under circumstances, the employer has the right to restrict employees’ freedom of expression through the right of instruction. Those circumstances are the so-called ‘Herbai criteria’. The balancing of interests includes 1) the nature of the expression of opinion, 2) the employee’s motives, 3) the damage suffered by the employer as a result and 4) the severity of the sanction imposed.

The court explained how it reached its judgment. For instance, the judge called the employee’s reaction “awkward” because on a business platform like LinkedIn, the employee’s utterance is linked to her employer’s company. The judge mentioned that regardless of the right to freedom of expression, a statement can have an impact on the company in which a person works. This situation can have a significant impact on a company.

The court ruled that in this situation, the employer should not have restricted freedom of expression. Indeed, the content of the post was not such that it should be inferred that the employer’s company takes a particular position, nor was there any evidence of direct harm to the employer.

In contrast, the court ruled that the employer did act in a seriously culpable manner. Addressing the employee about posting the post was fair, but to immediately propose termination of the employment contract went too far. This had unnecessarily put the employer on edge, the court held.

Tension in the workplace

NOS reports that there is considerable tension in the workplace as a result of the war. The images evoke strong emotions. As an employer, you do well to give employees space to talk about this in a safe environment. If employees exchange opinions in a respectful manner, this can lead to greater mutual understanding. At the office, as an employer you will also have to have a clear policy on discrimination, bullying and what you as an employee can and cannot say on behalf of your employer on social media.

Conclusion

In their own time, an employee is allowed to say whatever they want. As long as it is not diametrically opposed to the interests of the employer. Freedom of speech is a fundamental right and is strongly protected, but not indefinitely. If an employee posts something on LinkedIn, then his employer’s name is often directly under his profile and an employee’s opinion can be associated with that of the employer which bothers the employer. Both parties should be aware of this, and agree on it.

Contact

Do you have any further questions? Then contact one of our lawyers by mail, telephone or fill in the contact form for a free initial consultation. We will be happy to think along with you.