Focus: Chilling Effects: The Jurisprudence of the European Court of Human Rights

Abstract

Since the European Court of Human Rights (ECtHR) made clear ‘that Article 10 applies also to the workplace’, the right to freedom of expression of employees is no longer disputed. Case law of the ECtHR shows that Article 10 applies both to employees of public authorities, and to employees in the private sector, as well as labour organisations and trade union officials in their relation to the employer or the management. The jurisprudence of the ECtHR shows that in many countries in Europe employers have indeed interfered with the right to freedom of expression of their employees, eventually organised or acting as trade unions’ officials. Such interference can take place in different forms, such as a refusal of promotion, disciplinary measures, non-renewal or termination of an employment contract or an immediate dismissal for serious misconduct. For a diversity of reasons employers have interfered with employees’ or trade unions’ freedom of expression, for instance because some expressions or publications were considered defamatory, insulting or dishonestly criticising the employer, the management or other employees. The crucial issue is where the limits and restrictions of the employee’s and trade unions’ right to freedom of expression lie, as the exercise of this freedom carries with it ‘duties and responsibilities’ (Article 10 § 2 ECHR). According to the standards of the ECHR, the decisive question concerns whether an interference by the employer with the employee’s or trade union’s right to freedom of expression is ‘necessary in a democratic society’. In other words: when is there ‘a pressing social need’ justifying such interference? When it concerns freedom of expression of employees this right will be enhanced even more when opinions are expressed or statements are made in the context of trade union activities. The ECtHR in some of its judgments however seems not to give pertinent or sufficient weight to this dimension of the right to freedom of expression as part of trade union activities.