Speech is silver, silence is golden, or: where are the limits to legitimate criticism of an employer?

Against the backdrop of a legal conflict over a claim for nullity of summary dismissal from employment, the Czech Supreme Court laid down the criteria for what constitutes legitimate criticism of an employer by an employee. Failure to observe these criteria may constitute a breach of the obligation never to act against an employer’s legitimate interests.

Not acting against an employer’s legitimate interests features among the basic obligations of any employee in connection with their employment. In other words, employees must show a certain degree of loyalty towards their employer. However, one person’s rights end where another’s begin. Hence the question: where to draw the line between the legitimate interests of the employer and other rights of the employee? What are the consequences, if any, of a breach of this loyalty requirement?

In a recent decision, the Czech Supreme Court provided answers. The case (21 Cdo 1043/2016) concerned an employer (the owner of a private TV channel) who sent an employee a letter of summary dismissal, citing Sec. 55 (1) (b) of the Czech Labour Code. This step by the employer had been triggered by an article, penned by the same employee and published in an online magazine, which spoke in unflattering terms of (alleged) misconduct and shady practices at the broadcaster, comparing relations inside the employer’s company to a “totalitarian regime”.

The employee challenged his loss of employment in court, seeking nullification of the summary dismissal. His case was primarily built on the argument that, as a member of the news desk, he had encountered untoward interference by the owner with upcoming news reports, and that the article in question merely represented an exercise of his (i.e., the employee’s) constitutional right to freedom of expression. The employee argued that he had acted in the public interest. Given the changing fortunes of the parties in the ensuing proceedings, the case eventually ended up in the Supreme Court.

According to the Supreme Court, for an employer to have cause to terminate an employee on the grounds of a breach of labour-law obligations, the employee must be culpable (at least of negligence), and the breach must have reached a certain level of intensity. For criticism to be appropriate, it must be “legally permitted, or legitimate”, which in turn requires that it be factual, specific, and commensurate as to substance, form, and venue. In other words, taking into account its objectives, criticism must not be unconscionable or exaggerated, and must be based on true (and substantiated) claims of fact. The specific circumstances of each case must always be taken into account.

The Supreme Court found that freedom of expression enjoys no preference over protection of good name and reputation (be it that of a private individual or a legal entity) if it is invoked to engage in criticism outside the realm of what is permissible.

The Supreme Court therefore ruled that summary dismissal from employment had been based on a valid reason for termination, and dismissed the complaint.


Source: Judgment 21 Cdo 1043/2016 of the Czech Supreme Court of 20 March 2017, Czech Labor Code (Act No. 262/2006 Coll., as amended)

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