The European Court of Human Right’s ruling of 15 June 2021 concerned the dismissal of a contractual cleaning lady in an educational government service because she ‘liked’ (politically) sensitive posts on Facebook. The Court considered this dismissal as a violation of the employee’s freedom of expression (Article 10 European Convention of Human Rights).
Ms. Melike worked as a contractual cleaning lady for the Seyhan National Education Directorate in Adana since 1996. After she ‘liked’ certain Facebook posts which mentioned accusations against some teachers and political criticism, her employer started a disciplinary procedure as this violated the provisions of a collective bargaining agreement. As a result of this procedure, she was dismissed without notice or compensation. The Turkish labour court refused her claims as it did not consider her actions to fall under the scope of the freedom of expression and it claimed that her actions could disturb the peace at work. Her applications for appeal (including before the Turkish Constitutional Court) were denied.
The ECtHR states that ‘liking’ a Facebook post can be seen as the expression of an opinion. Therefore, it falls under the protection of the freedom of expression article 10 ECHR. The Court states that the Turkish labour court did not sufficiently investigate the possible disturbance of the peace that her actions (liking the posts) could have created at the workplace. The maintaining of the peace at work can be a legitimate aim to restrict the freedom of expression, but Ms. Melike was only a cleaning lady, had no representative function and was not bound by a strict duty of loyalty like civil servants. There were also no complaints of teachers, parents or students. Further, she did not create the posts herself or even share them, but merely ‘liked’ them, which rather restricts the reach of her actions. As the content of the posts was of a political and public nature, there is little room for a restriction of the freedom of expression. The immediate dismissal without any compensatory measures was therefore disproportionate in light of the legitimate aim. By allowing this dismissal of Ms. Melike, Turkey violated the fundamental freedom of expression in art. 10 ECHR.
Key Action Points for Human Resources and In-house Counsel:
- When surveying the social media activities of your employees, follow the national provisions regarding their right to privacy.
- Employers should respect the freedom of their employees to express their opinion on public matters on social media, especially when these employees do not have a representative function and are not public servants.
- Restrictions and measures to sanction social media activities of employees can violate their freedom of expression, if the actual consequences of the actions are not sufficiently investigated and when the measures are disproportionate.