From Attorney at Law Suhendra Leon
This email address is being protected from spambots. You need JavaScript enabled to view it.
When doing research for the topic of employment and social media, I encountered one particular court decision of the Court of Gelderland in the Netherlands dated August 24, 2021, that illustrates perfectly the boundaries for an employee when expressing him/herself on social media. The goal of this article is not to stir the discussion about vaccination. It is to illustrate the boundaries of freedom of expression of an employee. The court decision consists of 6,926 words and this is a short summary, but if you want to read the whole court decision, feel free to Google “ECLI:NL:RBGEL:2021:4701”.
The employee in this case has a university degree in Biomedical Sciences and graduated cum laude. The employee works in knowledge management at an institution that specializes in complex (elderly) care. The institution focuses on elderly people with physical and/or mental disabilities, younger people with dementia, and people who need palliative care.
The purpose of the position of the employee is to support and develop the knowledge infrastructure of the institution, support the board of directors, implement new policies, and evaluate these policies. For her position, she has contact with different care institutions and knowledge networks regarding care in the region.
Covid-19 hit care institutions hard and, therefore, the institution followed the national policy with regard to combating the coronavirus, including vaccination of patients and strictly personnel. Of the patients, 98% are vaccinated and 80% of personnel. Vaccination is administered in-house at the institution by personnel.
The employer became aware that the employee had posted and shared extensively regarding the Covid-19 vaccination on LinkedIn. The posts entailed warnings not to take the vaccine because of deaths and sickness caused by the vaccine and that the vaccine was experimental and that people taking the vaccine were test subjects.
She also posted an emotional video in which it was said that doctors and nurses that administer the vaccine are war criminals. In the video, statements were also made along the lines that governments and health authorities that are pushing the vaccine are liars and war criminals.
Important is that LinkedIn is a professional network, and the employee has 1,800 contacts including colleagues; also, in her profile, the institution is mentioned as her current employer. When she was addressed with regard to the posts on LinkedIn, the employee stressed that it was a private account and noted the right of freedom of expression. After being addressed, she continued posting but added the disclaimer that the content of the post was her personal views and not necessarily shared by her employer and that it was a personal account.
The employer was not satisfied by this and had another conversation with her in which she was requested to stop posting. After ignoring the request, she was placed on inactive duty. The employer then proposed to terminate her employment and parties participated in mediation.
At a certain moment after that, the employee also posted a video that showed a comparison of the identity card for Jews during the Second World War and the proof of entry to certain public spaces and events introduced by the Dutch government in relation to Covid-19. In the text accompanying the video, she wrote that the experiment was focused on exclusion and segregation. After this, the employer requested the court to dissolve the employment agreement.
The court referred to the Herbai case law of the European Court of the Human Rights in which the court held that the freedom of expression was not unlimited. There are four criteria to be considered when assessing a limitation of the freedom of expression in such cases: the nature of the expression, the motives of the employee, the damage suffered by the employer as a result of the expressions, and the severity of the sanction imposed.
In this case, the court considered that the employee shared two types of LinkedIn posts. Posts in which she generally warns about the dangers of vaccinating against Covid-19 with the aim of having a discussion about the vaccination policy and its scientific underpinnings and posts that are specifically aimed at people who cooperate with the national (vaccination) policy, that also was implemented by the institution in which vaccination is labelled as genocide and/or where she draws comparisons with the Second World War/persecution of Jews.
The court found that the posts in which the employee wished to participate in a social debate fell under the freedom of expression and therefore must be tolerated by the institution. The court does not see why colleagues, who are directly involved in the vaccination program within the institution and administer vaccinations themselves, cannot feel addressed when called war criminals.
The court considers that as a good employee, the employee should not have made those statements publicly. Complaints were made about the content of the messages at the institution. This means that the posts have had harmful consequences within the institution.
With regard to the appropriate sanction, the court considers that in view of the nature of her position and the level of education of the employee, it can be expected from the employee to know how to conduct a substantive (scientific) debate.
The employee should have known that offensive and condemning messages have no place in such a debate. She should have known this could be hurtful to her colleagues and that her choice to do this on a business network, where colleagues were among her followers, meant that they were likely to read these messages. The employee showed no willingness to change her actions, even after she had received an official warning.
In conclusion, the court dissolved the employment agreement of this employee. So let this be a warning to employees to think carefully about what they post/state and where they post/state it. For employers, it is important to consider that employees have the right to freedom of expression and that it cannot be limited by the employer without reason.
