1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Employees on social media: can employers dismiss staff for sharing views online?

How far can employers dictate what their employees can and cannot say online? As social media is increasingly used by individuals to express views and share information, employees’ rights on social media are a growing concern for employers.

In Herbai v Hungary (Application no. 11608/15) the European Court of Human Rights (ECtHR) heard a claim against Hungary for breach of the right of freedom of expression under Article 10 of the European Convention of Human Rights (ECHR).  This followed the dismissal by a Hungarian bank of an employee for publishing personal blog posts aimed at HR professionals.

Background

Mr. Herbai worked as an HR manager at the bank and was dismissed in 2011 after it was discovered he had written blog posts on an HR knowledge-sharing website. He had designed the website to provide guidance for HR management-related publications and events. It featured a profile and photograph of Mr. Herbai, describing him as an expert in HR management at a large domestic bank. It did not mention the bank by name. Two articles were posted by Mr. Herbai and another individual, providing information in general terms about current issues, such as HR strategies and tax rates. The bank argued that Mr. Herbai’s conduct, characterised as providing educational services on HR management, had damaged its economic interests.  It also said he had breached its code of ethics which prohibited employees publishing information relating to the activities of the bank. It argued that, given the nature of Mr. Herbai’s position, he had access to confidential information about the bank that could be damaging to the bank’s interest if made public.

What was the court’s approach?

The Hungarian Kúria (Supreme Court) upheld the dismissal of Mr. Herbai on the grounds that his conduct could have endangered the bank’s business interests and that it led to him sharing confidential information. The court said that, in an employment relationship, the right to freedom of expression can be restricted if this is absolutely necessary and proportionate. Mr. Herbai appealed to the ECtHR complaining that the termination of his employment had breached his right to freedom of expression under Article 10 ECHR.

The ECtHR found that the Hungarian courts had failed to carry out the requisite balancing exercise between the individual’s right to freedom of expression and the employer’s right to protect its legitimate business interests. In considering these two interests, it focused on the following four elements:

  1. The nature of the speech. The court rejected the argument that Mr. Herbai’s comments fell outside the scope of Article 10 ECHR because the published comments were addressed to HR professionals, i.e. a specific group of individuals, rather than to the public as a whole. They instead ruled that free speech in the workplace was not limited solely to information in the public interest.
  2. The motives of the author. It was clear that Mr. Herbai’s comments were not motivated by a personal grievance or antagonism and there was no malicious intent. Rather, his intention was simply to share knowledge with a professional readership.
  3. The damage caused by the speech to the employer. The court did not feel that any attempt had been made to show how the speech might have detrimentally affected the bank’s interests.
  4. The severity of the sanction imposed. Mr. Herbai’s dismissal, without any lesser sanction being considered, was seen as too severe a penalty.

What can we learn from this case?

This decision underlines the importance of striking a fair balance between the protection of an employer’s business interests and an employee’s right to freedom of expression when dealing with information shared online. Before dismissing, employers should make sure they have carefully considered this balance – otherwise they run the risk of failing to discharge their positive obligations under Article 10 ECHR. A post online which informs in a general manner, without jeopardizing the employer’s business interest, is not excluded from the protection of the right to freedom of expression so cannot be the basis of a lawful termination. This applies even when the subject matter relates to employment.

Employees on social media: can employers dismiss staff for sharing views online?

HMRC’s Check Employment Status for Tax tool (CEST) and Employment Status Manual Updated

HMRC has released an updated Check Employment Status for Tax tool (CEST) service. The tool can be used to find out whether HMRC are likely to class an individual as employed or self-employed for tax purposes.  It works by asking a series of questions about the relationship between the employer and the worker.

The questions cover areas such as whether the worker is an office holder, the worker’s right to send a substitute, the control that the employer has over the worker’s hours, place of work and workplace duties and who bears the costs of the worker’s equipment and other working necessities. HMRC have stated that, provided answers are given accurately and there are no tax planning arrangements, they will stand by the outcome that the CEST tool gives.

IR35

The updates that have been made to the CEST tool have been long awaited as CEST has been under review for some time. These changes have been introduced in response to substantial criticisms of the previous version of the tool which did not really take account of the individual’s wider working arrangements.  HMRC also wanted to reflect a number of IR35 decisions which have been made since the CEST tool was introduced and in anticipation of the extension of the requirement to deduct tax at source under IR35 to much of the private sector. HMRC has made almost 40 changes to the tool which cover Financial Risk, Worker Contracts and Personal Service. The tool asks for more information if the employer knows how the worker operates but will still provide an answer in cases where they do not have this detail. HMRC does recommend that the tool is used again once the employer has this information but maintain they will stand by this decision even if the employer does not re-check the answer.  That will still depend on the information provided being accurate – so if the employer becomes aware that the original information was wrong it would be advisable to re-check the result using the tool.

Mutuality of Obligation

The greatest criticism of the updates at this stage is that they do not take into account the Mutuality of Obligation factor. This is the obligation on the employer to provide work to the worker and the reciprocal obligation on the worker to accept this work. This has been deemed a particular fault of the CEST tool given that mutuality of obligation has been a key factor in determining employment status in a number of recent IR35 tribunals. The fact that the tool appears to assume this obligation exists is not in line with the outcome of many of these cases at tribunal.

HMRC has defended the updates saying that it has worked with more than 300 stakeholders to “make CEST clearer, reduce user error and consider more detailed information”.

HMRC’s Check Employment Status for Tax tool (CEST) and Employment Status Manual Updated

Are foster parents employees?

The Edinburgh Employment Appeal Tribunal has considered this yesterday.


In 2017, the Glasgow Employment Tribunal found that foster parents, Jimmy and Christine Johnstone, were employees of Glasgow City Council. This meant they should benefit from the same employment rights and protections as other Council workers.


The Tribunal based its decision on a number of factors including the following:
• The Johnstones were obliged to personally perform the foster care work;
• In exchange they were paid £32,000 per annum;
• They were allowed paid holidays;
• It was a condition of the agreement that neither of them took other work without the Council’s consent;
• There was a requirement to submit a daily parental report which indicated a degree of day-to-day control;
• The Johnstones were also required to attend weekly meetings; and
• They had no real discretion as to how the work they were required to do should be undertaken.

The Tribunal found that the degree of control was such that the claimants were employees of the Council working under a contract of service.

Glasgow City Council appealed against the Tribunal’s decision and the appeal was heard this week by the Employment Appeal Tribunal. The case is adjourned whilst Lord Summers considers his judgment.

Are foster parents employees?

Draft IR35 legislation published along with HMRC’s response to the consultation earlier this year

HMRC has published draft IR35 regulations (to come into effect on 6 April 2020) and a summary of the responses received during the consultation process. With the draft legislation and consultation response paper, HMRC has provided additional information on how the extension will operate.
Read more »
Draft IR35 legislation published along with HMRC’s response to the consultation earlier this year

The latest on employment/worker status

In the latest decision on employment status, an Employment Tribunal has held that a group of "Educators" conducting tours, sessions and courses for schools and other visitors to the National Gallery (the Gallery), as well as providing sessions in the community, are workers and not self-employed "freelancers" as the Gallery had long categorised them.
Read more »
The latest on employment/worker status

Consultation on extending redundancy protection for new parents

Returning to work after maternity can be a daunting prospect for new mums, and it is important for them to feel that they will be valued and supported upon their return. Unfortunately, this is not the case for many women. With Brexit fast approaching, Theresa May is said to be "determined to do even more as we leave the EU", including by building on the current EU requirements on maternity and paternity leave protection.
Read more »
Consultation on extending redundancy protection for new parents

Employment status and the right to substitute

The EAT has found that the right to appoint a substitute can still be consistent with employee status, notwithstanding the requirement that the work must be personally performed, if such right is only exercised when an employee is unable to work.
Read more »
Employment status and the right to substitute

The Good Work Plan – follow-up developments

Following our article earlier this week about the "Good Work Plan", the government has now introduced the first three statutory instruments implementing some of the changes outlined in the Plan:
Read more »
The Good Work Plan – follow-up developments

Government’s Good Work Plan: a step closer to implementation of Taylor Review recommendations?

Following the Taylor 2017 Review and the subsequent consultations launched earlier this year, the government has now published the Good Work Plan (the Plan). The Plan sets out its proposals for implementing the recommendations of the Taylor Review and "a wide range of policy and legislative changes" dealing with worker status, agency workers and zero hours contracts.
Read more »
Government’s Good Work Plan: a step closer to implementation of Taylor Review recommendations?

Labour of love: foster parents are not workers under the Working Time Directive

In a case referred by the Romanian courts, the ECJ has held that foster parents are not workers for the purposes of the Working Time Directive. This makes it more likely that cases currently pending before employment tribunals in the UK on foster parents' entitlement to holiday pay are likely to be unsuccessful.
Read more »
Labour of love: foster parents are not workers under the Working Time Directive