29 Nov Employee’s freedom of expression has been violated

In the case of Herbai v. Hungary (application no. 11608/15) the European Court of Human Rights held, unanimously, that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. 

The applicant, Csaba Herbai, is a Hungarian national who lives in Budapest . The applicant was working in the human resources department of a bank, O., and was also contributing to a website which carried general articles about HR practice where the applicant had expressed his professional opinions as a human resources expert. The articles did not disclose confidential or personal information of the bank O., since the applicant, as an expert, has only expressed his disagreement with the bank’s human resources practice. The bank dismissed the applicant on the grounds that his website articles had breached its confidentiality standards and infringed its financial interests. It also argued that his position at the bank meant that he was privy to information that could interfere with the bank’s business interests if published. Mr Herbai went to court over his dismissal, with the Kúria ultimately ruling on the case in favour of the bank, observing that his conduct could have presented a risk to his employer’s business interests.

The Court looked at four elements in the permissible scope of restricting the right to free speech in the employment relationship at issue: the nature of the speech; the author’s motives; any damage caused; and the severity of the sanction. 

Firstly, the Court did not agree with the Constitutional Court’s finding that the type of speech in question, addressed to a professional audience, was not the kind that could be protected as it did not have the characteristics of being part of a discussion on matters of public interest. 

Secondly, while comments motivated by personal grievance or antagonism could not enjoy a strong level of protection, it found that the domestic courts had not seen such motives in the applicant’s actions.

On the third question, the Court noted that the domestic courts had focussed on the question of potential damage to the bank’s legitimate business interests and at the possibility of the applicant divulging confidential business information. However, even given a certain level of deference under domestic law to employers to determine which conduct could disrupt working relations without such disruption being clearly manifest, neither the bank nor the Kúria had made any attempt to show how the speech in question could have adversely affected the bank. 

On the final question, it was clear that the applicant had suffered a severe penalty as he had lost his job without any assessment of a less serious measure.

Therefore, there had been a violation of Article 10 of the Convention.

References from the official website of the European Court of Human Rights