The use of the internet and social media has given individuals new arenas of expression and the opportunity to spread their message to a large audience. For the employer, it can be both troublesome and harmful when employees use this opportunity to express themselves in a way that does not fit with the company's profile. What do you do with employees who slap their lips or make unpleasant statements in public? In most cases: nothing at all.
1 No dismissal from Norwegian University of Science and Technology (NTNU)
On Thursday 2 December 2021, the board at NTNU decided to enter into a settlement agreement with associate professor Øyvind Eikrem at the Department of Social Work. This happened after the Employment Committee this summer decided to dismiss Eikrem due to statements made outside the work.
The dean recommended that the dismissal decision be upheld, but the board instead chose a settlement solution which, among other things, means that the associate professor resigns his position voluntarily in exchange for financial compensation.
The background for the case is that Eikrem in 2018 was interviewed in his spare time by the right-wing radical website Resett, and in that connection made critical statements about immigration and crime. The statements provoked reactions among both students, colleagues and the management at the department, and several believed that the department's reputation was damaged.
Later, an investigation was also conducted which concluded that Eikrem has disposed of one or more anonymous Facebook profiles that have been used to spread xenophobic and hate speech. Eikrem himself denies having disposed of the profiles.
2 Reactions to private statements
The Eikrem case illustrates the difficult trade-offs the employer faces when employees make unpleasant statements that are contrary to the company's attitudes and values. In one scale, consideration is given to the company's reputation, customers (students) and other employees. In the other lies the employee's freedom of expression.
In most cases, it is freedom of expression that weighs heaviest. The main rule is therefore that the employer cannot control, limit, or react to statements made by the employee as a private individual. Freedom of expression is an overriding human right that is protected by both the Constitution and international conventions.
However, there are limits to what an employer can tolerate that the employees say publicly. Both statutory and contractual provisions on the duty of confidentiality can limit what an employee can say in a specific case, or the employees can say about business-sensitive matters. The employee's duty of loyalty to the employer can also be a basis for reacting to statements that may harm the company's objective and legitimate interests.
For example, the employer must be able to intervene if an employee makes derogatory or harassing statements about the management or the company's services. However, it is the employer who has the burden of proof, and who must be able to document that the statement damages the factual and legitimate interests of the company.
Whether the employer can intervene depends on a specific assessment. Central to the assessment is, of course, the content of the statement itself. If the expression is political, it is particularly strongly protected by freedom of expression. This also applies to political perceptions that are perceived as provocative and strongly different from what is common. The protection is also strong when the statement is based on the employee's specific professional competence and is thus suitable for informing the public debate.
Unreasonable and insulting statements, on the other hand, are not as strongly protected by freedom of expression. If the statement is punishable, it is an argument that the employer can react. However, it is not automatic that a private, criminal statement can or should have consequences for the employment relationship. This topic was raised in the NTNU case, where the dean in his recommendation pointed out that some of the statements Eikrem could allegedly be held responsible for, are affected by the penal code's ban on hate speech.
The type of business in question and the type of position the employee has will also be important for the assessment. In case law, it has been emphasized that public employees may have to endure greater restrictions on freedom of expression than private employees. At the same time, public employees will often be able to sit with an insight that is particularly suitable for informing the public debate, which suggests that the room for manoeuvre is large. This applies not least to employees within academia.
In private enterprises, it may also be necessary to consider certain financial and business conditions that are not as prominent in the public sector. Statements are often more stressful when made by someone who is strongly identified with the business. This suggests that managers may have to endure somewhat stronger restrictions on freedom of expression than employees further down the hierarchy.
3 Work-related statements
While freedom of expression is the main rule when the employee speaks privately, we have at the other end of the scale situations where the employee speaks by virtue of his role as an employee or on behalf of the company. Here, the employer has the right to manage. This means that the clear starting point is that it is up to the employer to decide both who is to speak publicly on behalf of the company and what is to be communicated.
The employer can also, by virtue of the right to manage, set a framework for how employees' communication internally in the workplace should be, for example through general guidelines for courtesy and language use. The precondition is nevertheless that the restrictions are justifiable.
4 Tools at hand
If the employer first believes that there is reason to react to an employee's statements, one must decide what kind of reaction is the right one. Dismissal - as in the case from NTNU - is the most intrusive tool the employer has for an employee and can only be used in very exceptional cases. Other, and usually more obvious alternatives, may be to address the relationship with the person and possibly give a formal warning.
Another possible tool - which is outside the labor law toolbox - is to respond with the same coin. If it is not in conflict with the duty of confidentiality, obligations of care towards the employee or other rules, the employer also has the freedom to express itself.
This means that the management or other employees are in principle free to make counterstatements that show that the employee's statements are not something the company identifies with. However, this presupposes that the counter-expression is a factual contribution to the debate and not a covert labour law reaction.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
