Duty of loyalty and freedom of speech in employment - what is the limit for employees’ statements in the media?

What is freedom of speech?

Freedom of speech is the right everyone has to express their opinions regardless of the medium used. Freedom of speech is enshrined in the Constitution and is also an important human right. Interference with freedom of speech therefore requires a special justification. The starting point is that employees have the same freedom of speech as all other citizens.

What is a duty of loyalty?

The employment law duty of loyalty is based on non-statutory and discretionary rules. The duty of loyalty can be derived, among other things, from the employment contract, which is based on a premise of a relationship of trust and loyalty between the parties. This means that the employee has a duty to act in accordance with the employer’s interests, and also means that the employee must not express itself in a way that is directly harmful to the employer.

The employee’s duty of loyalty can in some cases provide a basis for restricting freedom of speech.

Where is the line of disloyalty?

The employee’s duty of loyalty protects the employer against statements that disloyally harm the company’s interests. However, the employer cannot sanction statements that are 'merely' perceived as undesirable, unfortunate or unpleasant. At the same time, the employer will always have the right to decide who can speak on behalf of the company and control what is to be said and when it is to be said.

Employees’ right to express themselves on their own behalf is strongly protected by freedom of speech. Such statements can still be considered disloyal if the employee’s statements can be confused with the company’s position. The risk of identification varies with different job levels, and will be greater the closer the employee is to the company’s management.

When assessing the disloyalty of the statement, in addition to the risk of identification and damaging effects for the employer, factors such as the form of the statement, the employee’s motive, and whether the statement is made internally or externally must be assessed.

Note: The employer can draw up guidelines for the use of social media to create clarity in the boundary between the employee’s freedom of expression and the duty of loyalty. However, internal guidelines cannot unilaterally restrict employees’ protected freedom of speech.

The whistle-blower protection

Employees always have a right, and in some cases also a duty, to report objectionable conditions in the business. Among other things, the employee is obliged to notify the employer or the safety representative if the person concerned becomes aware that harassment or discrimination is occurring in the workplace.

Employees who report legitimately have whistle-blower protection. The employer can therefore not react with negative sanctions (normally referred to as “retaliation”) against an employee who has properly notified about objectionable conditions in the company. Typical examples of such illegal retaliation would be termination, dismissal, deprivation of work duties or relocation to another department.

Whistle-blower protection must contribute to a good climate of expression in the business, and the employer is obliged to facilitate whistleblowing by providing employees with good information about whistleblowing and establishing routines for good handling of whistleblowing. Read more about notification and SANDS’ notification channel here.

Did you know:

• The duty of loyalty in an employment relationship is mutual. This means that the employer has a duty to ensure that the employee’s interests are safeguarded as far as possible.
• Statements in breach of the employee’s duty of loyalty may give grounds for termination or dismissal. Read more about termination here and dismissal here.
• Employees who are exposed to retaliation after reporting can claim compensation for economic and non-economic loss.

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SANDS’ employment law team regularly assists employers who experience disloyalty from employees. Very recently, we assisted a large business during legal proceedings regarding the dismissal of a key employee. The person had started a business in competition with the employer, and had also spoken about this to the media. The employer was upheld by the court that the dismissal was factual and valid and was able to cover its legal costs in connection with the case.

If you are unsure how to handle employees’ statements in the media, we recommend that you seek legal assistance today. Feel free to contact us.