Introduction
Freedom of speech is a fundamental right, but how far does that right extend within an employment relationship? May an employee publicly criticize his or her employer? And can an employer intervene if that expression leads to internal tensions? A recent case that even reached the Supreme Court focused on exactly that question. The outcome is of great interest to employers and employees, especially in sectors such as education, where social engagement and professional criticism often go hand in hand.
The background: a book about practice
The case revolved around a teacher at the ROC in Nijmegen. She wrote a book in which she criticized the educational practice and structure within the institution. The book contained observations about a new teaching method and about working conditions within the team. Although no names were mentioned, the educational institution felt that colleagues with some prior knowledge were recognizable. According to the employer, the publication led to disruption within the team.
Following the publication, the teacher was first suspended. The dismissal finally followed in 2020, which the employer said was justified because of the disrupted labor relations allegedly caused by the book.
The legal battle: all the way to the Supreme Court
The teacher challenged the dismissal and invoked her right to freedom of expression. Both the district court and the court of appeals initially rejected her claims. They found the dismissal justified on the basis of the disrupted working relationship.
The teacher did not take this lying down and went to the Supreme Court. The Supreme Court ruled in her favor on a crucial point: the court had not sufficiently recognized that her dismissal was directly related to the statements in her book. This constituted interference with her fundamental right to freedom of expression, as protected by Article 10 of the European Convention on Human Rights (ECHR).
The Supreme Court referred the case back to the Court of Appeal of 's-Hertogenbosch, instructing it to weigh the right to freedom of expression more emphatically in its assessment.
Court's verdict: dismissal was unjustified
The court came to a renewed assessment in 2023. It found that the teacher's book was critical but not offensive. Moreover, it served a general interest: to stimulate debate about the quality and design of education. Although colleagues may have recognized themselves in certain passages, it was not considered unlawful or transgressive.
The court also emphasized that the dismissal was directly related to the publication. This constituted an impermissible restriction on freedom of expression, which in this case outweighed the employer's interest in ending the employment relationship.
The dismissal was therefore deemed unjustified. The employee is entitled to fair compensation, the amount of which will be determined by agreement between the parties. The court will issue a separate ruling on this if the parties cannot reach a mutual agreement.
Importance for practice: careful consideration in the face of employee criticism
This ruling underlines that, in principle, employees may also express their opinions outside the workplace about the policy or working conditions at their employer. Especially when it comes to socially relevant topics, such as teaching methods or public service, that right is extra protected.
Employers considering taking action because of an employee's external comments would be wise to pay close attention to the proportionality principle. Is there a public contribution to the debate? Are the statements factual or personally offensive? Have alternatives to dismissal been adequately explored? And was the employee's behavior truly harmful to the organization?
Without clear answers to those questions, the employer risks an expensive legal defeat.
Conclusion
The case of the teacher at ROC Nijmegen shows that freedom of expression remains a weighty right even within the context of an employment relationship. Critical statements about work cannot simply lead to dismissal, especially if they contribute to the social debate. For employers: leave room for opinions, even if they are uncomfortable. And for employees: speak up, if respectful and with an eye to the greater good.
This blog was written by mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs and employees on a daily basis with a variety of employment law issues. From dismissal cases to drafting watertight contracts and regulations - with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn's page.
Arbeidsadvocaat.nl is happy to think with you if you have questions about dismissal. Please feel free to contact us .
April 2025
