Was the dismissal of a university professor a breach of his right to freedom of expression?
Partner, Veale Wasbrough Vizards
The dismissal of a Latvian professor for publicly criticising his employer was an unjustified interference with his right to freedom of expression, under Article 10 of the European Convention of Human Rights, held the European Court of Human Rights (ECtHR).
In Rubins v Latvia, Mr Rubins was employed by Riga Stradina University in Latvia (the University) as a professor and head of department. In 2010, the University informed Mr Rubins of its intention to merge two departments, which would result in the removal of Mr Rubins' post. Mr Rubins could either accept the change to the terms and conditions of his employment, or his employment contract would be terminated.
In a number of emails Mr Rubins objected to the University's proposals. He criticised democracy and accountability in the University's structure and leadership, alleged mismanagement of the University's finances and pointed out personal and professional failings in his colleagues (including plagiarism). He then sent another email (the settlement email) suggesting two options to resolve his dispute with the University. One option involved the payment of money to him in return for him leaving his employment. In the settlement email, Mr Rubins also stated that he would "make everything public" if the University went ahead with the proposed restructuring.
The University took the view that the settlement email contained inappropriate demands, blackmail and threats, and it rejected Mr Rubins' proposals. On the same day, the Latvian national news agency published Mr Rubins' allegations of mismanagement at the University.
The University gave notice of Mr Rubins' dismissal, after conducting an investigation, on the basis of what it saw as the use of blackmail and threats in the settlement email. Mr Rubins issued proceedings against the University, seeking an order invalidating the termination notice. The Latvian courts rejected Mr Rubins' claims, finding that his dismissal had been fair under domestic legislation.
Mr Rubins then brought proceedings in the ECtHR on the basis that the dismissal breached his right to freedom of expression under Article 10 of the European Convention of Human Rights.
Article 10 of the Convention entitles everyone to the right to freedom of expression, subject certain restrictions as are prescribed by law and necessary in a democratic society. The ECtHR confirmed that whilst Article 10 does apply to the employment relationship, it is necessarily balanced with the employee's duty of 'loyalty, reserve and discretion'.
A majority of the ECtHR held that Mr Rubins' dismissal from the University, as a result of the settlement email, amounted to an interference to his right to freedom of expression under Article 10.
In the view of the ECtHR, the Latvian courts had not given proper weight to the following factors:
- The truthfulness of many of Mr Rubins' allegations.
- His attempts to resolve his complaint internally before turning to the press.
- The calculation of financial compensation had not been unreasonably high.
- He had not divulged private information damaging to individuals.
- The severity of dismissal as a sanction.
Article 10 of the European Convention has been incorporated into the law in the UK under the Human Rights Act 1998.
This case raises the interesting question of how far Article 10 might protect individuals who are not covered by the whistle-blowing legislation. If an employer dismisses an employee for expressing their views in writing or orally, it may be that the employee will attempt to allege that the dismissal was unfair on the basis that it infringed his or her Article 10 rights.
For more information, please contact Michael Halsey on 020 7665 0842.
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