Is it legal to fire a worker for criticizing the management of his managers? If the comments are harsh but respectful, occur in a work context and do not damage the reputation of the business, It is an illegal sanction. What's more, criticism of bosses in this scenario is a fundamental right. This is what he just dictated European Court of Human Rights (ECHR), the international court that monitors the fundamental rights of European citizens. The ruling is relevant because it draws and delimits at an international level the limits of an always thorny issue: freedom of opinion at work.
The matter results from the dismissal of a computer engineer in Turkey. The operator was fired for sending an email to the human resources department, with a copy to the deputy director, with the subject “Jeff Bezos against HK” (the last one is the anonymous name of the businessman). In the communication, the operator made an acid comparison between the extensive resume of Bezos, current leader of Amazon, and that of his boss, and blamed him for a series of wrong decisions that, in his opinion, had weighed down the atmosphere of the company. company.
In the unanimous ruling, the Court clarifies that criticizing the management of superiors, even with reticence and sarcasm, cannot be a cause for dismissal or indiscipline because, although biting, and even cruel, the comments are constructive and do not result in disqualifications. personal. A worker's criticism of his company falls within the limits of freedom of expression. They deserve, consequently, the maximum legal protection and cannot be grounds for dismissalthe magistrates conclude.
“It's not Jeff Bezos”
Specifically, the employee reproached the Human Resources department for attitudes such as the fact that the company's top manager, Mr. HK, did not allow workers and managers to work in the same spaces, that higher-ranking employees entered through another door so as not to mix with the rest, or the heavy hand with orders and the little freedom to act. The opposite of what Jeff Bezos allowed at Amazon, he assured, whom he used as an example of a leader. He also expressed disagreement with the cutting of expenses such as transportation tickets, or that in the admission processes friendship took precedence over training. Actions that explained, he added, “why 70% of the 500 largest companies in the world are American and there is not a single Turkish one.”
The Strasbourg resolution is relevant for Spanish employers and workers because Two reasons. Firstly, because it elevates freedom of expression in the workplace to the category of fundamental right, at the level of the European Convention on Human Rights (ECHR), when, and here the novelty, business management is attacked. Always, of course, that there is no insult and there is a constructive spirit.
Secondly, because the ECtHR doctrine is directly applicable in Spanish courts. Consequently, it will condition possible conflicts that arise in similar situations. “The sentence represents a reinforcement of freedom of expression at work,†he analyzes Eduardo Rojo, retired professor of Labor and Social Security Law at the Autonomous University of Barcelonaalthough it draws a “line similar to the guidelines set by our Constitutional Court.”
Requirements
The legality of the opinions against the directors, however, is tied to three requirements that the Court outlines. First of all, that the comments do not damage the prestige of the company. Which is true in the case of IT in Turkey, as it is an internal email that a small number of people receive.
Secondly, “it is vital to review the context,” Rojo recalls. In this sense, the court believes that the Turkish judges made errors when analyzing the “reach and impact†of the mail, as well as “the negative consequences it would have caused to the employer or the workplace†or at the time to measure “the severity of the sanction imposed on the plaintiff,†the ruling states. A third red line is insult: for the Chamber, the management must distinguish between harsh criticism (legitimate) and gratuitous and excessive disqualification (punishable).
What our courts have said
J. M. B.
Constitutional. In the 1980s, our Constitutional Court clarified that freedom of expression is a right that enjoys the highest distinction in the scale of judicial protection, however, on several occasions it has also recalled that this is not unlimited. The workplace is no exception. In the 90s, the highest interpreter of the Magna Carta went into detail and said that, at work, the right to give an opinion is not the same when it is exercised with people outside the company as when it is between colleagues. The opinion cannot imply, in any case, public damage to the company's prestige.
Context. Judges and jurists insist on another fundamental idea: paying attention to the context, that is, analyzing the edges of the conflict. Daniel Toscani, professor at the University of Valencia and labor counsel at Alentta Abogados, points out in this sense that “insulting a boss without prior provocation is not the same as responding to a previous insult”; or verbally attack “when one is in a demonstration and the chants, slogans and slogans typical of any demonstration are being uttered.”
Pickets. Thus, for example, in 2017, the Supreme Court ruled that an employee's banner accusing the company of “corporate terrorism” is not an attack on honor; It's more like normal on a picket line.
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