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Employment Law

Legal guidance - compliance - software

15 SEP 2011

Misconduct dismissal

James Goudie QC

Employees are dismissed for serious misconduct by their private employer.  If the State does not annul the dismissal, may the State be liable to the employees for breach of the European Convention of Human Rights ("the ECHR")?

This is the question which arose in Sanchez v Spain, in which the Grand Chamber of the Strasbourg Court gave Judgment on 12 September 2011.  The majority of the Court held that the Spanish State had not failed to fulfil its obligations.

Mr Sanchez and five other applicants worked for a company in Catalonia.  They published a cartoon and an article in a Trade Union newsletter.  They complained unsuccessfully to the Barcelona Employment Tribunal and on appeal that, on the pretext of the content of the newsletter being offensive about other employees of the company, they were being dismissed for Trade Union activities.

They alleged breach of Article 10 of the ECHR: freedom of expression; and also of Article 11: freedom of association.

The Strasbourg Court considered not only the relevant Spanish law and its own ECHR jurisprudence, but also relevant International Instruments and Practice, from the International Labour Organisation and the Inter-American Court of Human Rights, and elements of comparative law.

The Strasbourg Court noted that the facts of the case were such that the question of freedom of expression was closely related to that of freedom of association in a trade-union context.  The Court reiterated in that connection that the protection of personal opinions, as secured by Article 10, is one of the objectives of freedom of assembly and association, as secured in Article 11.

However, the Employment Tribunal and the High Court on Appeal had concluded that the applicants' trade union activities did not play a decisive role in their dismissal.  The Strasbourg Court therefore found it more appropriate to examine the facts under Article 10, which would nonetheless be interpreted in the light of Article 11.

The Court set out the general principles in matters of freedom of expression.  Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. It is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no "democratic society". This freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed.

The Court continued, however, that account must nevertheless be taken of the need to strike the right balance between the various interests involved. Because of their direct, continuous contact with the realities of the country, a State's Courts are in a better position than an International Court to determine how, at a given time, the right balance can be struck. For this reason, in matters under Article 10, States have a margin of appreciation in assessing the necessity and scope of any interference in freedom of expression, in particular when a balance has to be struck between conflicting private interests.  That margin goes hand in hand with European supervision.   The Court's task in exercising its supervisory function is not to take the place of the national authorities but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation can be reconciled with the ECHR provisions relied upon.

The Court said that a Trade Union that does not have the possibility of expressing its ideas freely would be deprived of an essential means of action. Consequently, for the purpose of guaranteeing the meaningful and effective nature of trade union rights, the national authorities must ensure that disproportionate penalties do not dissuade Trade Union representatives from seeking to express and defend their members' interests. However, Article 10 does not guarantee an unlimited freedom of expression.  The protection of the reputation or rights of others, in the present case the reputation of the persons targeted in the drawings and texts at issue, constitutes a legitimate aim permitting a restriction of that freedom of expression.

The Court then went on to consider the positive obligations of the respondent State under Article 10, read in the light of Article 11.  The genuine and effective exercise of freedom of expression does not depend merely on the State's duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals. In certain cases the State has a positive obligation to protect the right to freedom of expression, even against interference by private persons   Although in the present case, the measure complained of by the applicants, namely their dismissal, was not taken by a State authority but by a private company, and the disciplinary measure of dismissal for serious misconduct was taken against the applicants by their employer, and was not the result of direct intervention by the national authorities, the responsibility of the authorities would nevertheless be engaged if the facts complained of stemmed from a failure on their part to secure to the applicants the enjoyment of the right enshrined in Article 10.   In those circumstances, the Strasbourg Court found that it was appropriate to examine the applications in terms of the positive obligations of the respondent State under Article 10, in the light of Article 11. The Court therefore ascertained whether, in the present case, the Spanish judicial authorities, in dismissing the applicants' claims, adequately secured their right to freedom of expression in the context of labour relations.

Applying those principles to the case, the Court noted that the principal question was whether the respondent State was required to guarantee respect for the applicants' freedom of expression by annulling their dismissal. The Court's task was therefore to determine whether, in the light of the case as a whole, the sanction imposed on the applicants was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were "relevant and sufficient".

The Strasbourg Court took the view that the grounds given by the domestic Courts were consistent with the legitimate aim of protecting the reputation of the individuals targeted by the cartoon and texts in question, and that the Courts' conclusion that the applicants had overstepped the limits of admissible criticism in labour relations could not be regarded as unfounded or devoid of a reasonable basis in fact.  The Strasbourg Court also took the view that the sanction of dismissal was proportionate to the degree of seriousness of the impugned remarks.  In the particular circumstances of the case, the measure of dismissal taken against the applicants was not a manifestly disproportionate or excessive sanction capable of requiring the State to afford redress by annulling it or by replacing it with a more lenient measure.

James Goudie QC

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