UK: dismissal for publishing professional opinions online was unfair notwithstanding breach of confidentiality

The European Court of Human Rights has ruled in Herbai v Hungary that the European Convention Article 10 right of freedom of expression can protect opinions which are on matters of interest only to specific professions.  It is not limited to comments that demonstrably contribute to debate on matters of public interest.

The Court held that, when considering the fairness of a dismissal for expressing such opinions and balancing the freedom of expression against the employer's right to protect its commercial interests, courts must consider the nature of the opinion, the motives of the author, what damage has been caused to the employer and the severity of the sanction.

The individual in this case had set up a knowledge-sharing website for HR professionals, on which he described himself as working in HR for an unidentified, large domestic bank.  He was dismissed after posting two articles on HR strategy and recent tax changes, on the grounds that he had breached its confidentiality standards prohibiting formal or informal publication of any information relating to the functioning and activities of the bank. The European Court held that the Hungarian courts had failed to properly balance the right of freedom of expression against the employer's interests when finding the dismissal to be fair.  The comments were within the Convention right, the individual's motives were simply to share knowledge among the HR profession, there was no evidence of damage to the bank's interests, and a severe sanction had been applied without considering other options.

Employers should bear in mind the breadth of the right of freedom of expression as elucidated in this case, and should ensure that they take into account the factors highlighted by the European Court when deciding on the appropriate sanction for breaches of confidentiality obligations.