In the case of Herbai v Hungary, the European Court of Human Rights held that an employee’s right to freedom of expression had been violated when the courts in Hungary upheld his dismissal by his employer for breach of confidentiality provisions.
There can be a tension between Article 10 of the European Convention of Human Rights (the “Convention”) right to freedom of expression and contractual confidentiality obligations. This is particularly evident in an employment relationship where the express and implied obligations of confidentiality between employer and employee means that certain forms of freedom of expression that may be legitimate in other situations may not be so in an employment context.
Each country bound by the Convention has a positive obligation to ensure that a fair balance is struck between the competing interests of an individual and the community as a whole.
This case originated in Hungary where Mr Herbai, the applicant, was employed as an HR manager by the respondent, a large domestic bank. During his employment at the bank, Mr Herbai set up his own knowledge-sharing HR website featuring articles written by him. These articles referred to Mr Herbai by name and described him as an HR expert who worked at an unnamed domestic bank.
The bank dismissed Mr Herbai for gross misconduct, citing a breach of confidentiality provisions. It stated that Mr Herbai had infringed the bank’s economic interests by providing HR advice on the website. Moreover, Mr Herbai had confidential knowledge that could interfere with the bank’s business interests, if published.
Mr Herbai challenged this decision unsuccessfully before Budapest Labour Court. Following an appeal, Mr Herbai lodged a constitutional complaint, arguing that his activities fell within his right to freedom of expression, as the articles published raised issues of professional and public interest. The Supreme Court in Hungary dismissed this action as the articles related almost exclusively to a specific profession and contained information of a commercial nature, not of public interest.
Finally, Mr Herbai took his case to the ECHR, arguing that the Hungarian law which permitted his dismissal infringed his Article 10 right to freedom of expression.
The ECHR found in favour of Mr Herbai and ordered that there had been a violation of his Article 10 right to freedom of expression. It stated that the right to freedom of expression should be secured even in the relations between employer and employee. The Hungarian courts had failed to carry out the required balancing exercise between the employer’s right to protect itself and the individual’s right to freedom of expression, and had upheld Mr Herbai’s dismissal based entirely on contractual confidentiality considerations, not his Article 10 right.
The ECHR identified 4 elements to take into account when considering the scope of the restriction on freedom of expression in the employment context:
- The nature of the speech: Freedom of expression is not limited to certain types of information or forms of expression such as matters of public interest.
- The motivation of the author: Freedom of expression motivated by grievance, personal gain or antagonism deserves less protection.
- The damage caused by the speech to the employer: Mr Herbai had acted to his employer’s detriment by writing expert HR articles on the website using knowledge acquired through his work but neither the bank nor the Hungarian court had sufficiently demonstrated how this had negatively impacted the bank’s commercial interests.
- The severity of the sanction imposed: The bank had dismissed Mr Herbai without considering whether any other less severe sanction might be more appropriate.
This case demonstrates that contractual restrictions on employees can potentially be overridden by fundamental human rights considerations such as the right to freedom of expression.
It is also a reminder that when enforcing contractual obligations that infringe on an employee’s freedom of expression, consideration should be given to the appropriateness of the sanction, the employee’s motivations and the potential commercial damage they could cause the employer. Dismissing where no actual damage has been caused to the employer risks claims for unfair dismissal.