Netherlands Update: Resignation for political statements on social media?

On 15 March last. the Netherlands voted for the Provincial Councils and the water boards. An exciting period in which tempers can run high. It is therefore possible that employees share their political opinions openly on social media. But what if that opinion is at odds with the employer’s company’s vision? For example, can the employer proceed to dismissal? We discuss it in this blog.

Freedom of expression
The starting point in the relationship between employer and employee is freedom of expression. Freedom of expression is defined in employment law by the principles of ‘good employment practices’ and ‘good employment practices’. Freedom of speech is not unlimited. For example, the employer can give the employee certain instructions that may limit freedom of expression. Consider, for example, an e-mail or social media protocol in which the inclusion of ‘flags’ is not allowed.

Statements on social media: the rules of the game
Special rules apply if the employee shares his political opinion on social media. The following four elements (from the Herbai judgment) can be used to determine whether the employee’s statements exceed the limits of freedom of expression:

The nature of speech;
Motives of the employee;
Damage that the employer suffers through the expression; and
The severity of the sanction.
The employee will generally enjoy more protection when it comes to expressions of public interest or social relevance than when it comes to personal or discriminatory comments. In addition, the (social) vision and core values of the employer are taken into account during the assessment. A strong ‘colour’ of the employer may mean that the employee must take this into account when expressing his opinion. It is also taken into account whether theemployer has suffered (potential) financial or reputational damage. It is important whether the statements were made on a closed or public platform and whether it was visible where the employee worked. Finally, it is assessed whether a light(er) sanction would have been possible. A lighter sanction than dismissal is, for example, compliance with a code of conduct or possibly other disciplinary measures.

Dismissal as a result?
It may follow from the consideration of the four elements that the employee’s statements exceed the limits of freedom of expression and are contrary to good employment practices. Depending on the specific circumstances, this can result in culpable actions by the employee and (therefore) a ground for dismissal. A good example in which the employer’s request for dissolution was granted is the following ruling in the Greenpeace case.

Example Greenpeace
The Greenpeace employee spoke out on his Facebook account about topics of social relevance and in which his (political) preferences were strongly expressed. For example, the statement was about the protests in Hong Kong and developments in North Korea. The employee’s statements were contrary to Greenpeace’s core values. It goes without saying that Greenpeace is an organisation with a strong social vision. Greenpeace is therefore asking the court to terminate the employment contracts.

The Court examines the employee’s statements on the basis of the four elements of the Herbai judgment. In particular, the Court considers the (strong conflict of the statements with the) core values of Greenpeace, which stated Greenpeace as an employer on the employee’s Facebook page and that Greenpeace depends on donations and its credibility (complaints about the statements had already been received by Greenpeace).

The Amsterdam Court of Appeal ruled that the employee’s expressions are contrary to good employment practices. This, in combination with the fact that the employee was subsequently unwilling to comply (still) with the Greenpeace Code of Conduct, provides a reasonable ground for dissolution (on the basis of ‘culpable conduct’ of the employee).

What can you do within the company?
You can provide instructions on how to use social media with a social media protocol or a code of conduct. This can then help in balancing the four elements of the Herbai judgment;
Depending on the circumstances, statements by employees on social media can lead to the permission / need to take measures. Carefully determine which measure is appropriate. This will often start with a warning and can eventually result in dismissal;
Around elections, be alert to any tensions in the workplace.

By Hocker, Netherlands, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact netherlands@transatlanticlaw.com

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