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What can an employer do against statements of employees on social media? 11-02-2023

These days, it is common for employees to make negative statements about their employer on social media or to express themselves in a way that is contrary to the nature of the employer’s business or company. Can the employer undertake anything against such negative statements? Yes, they can. Statements on social media are regularly a subject of dispute in court proceedings. Below I will briefly discuss two recent judgments where the employer had requested termination of employment as a result of statements on Facebook.

In its decision of 8 November 2021, the Zeeland-West-Brabant District Court, granted the request of the employer and dissolved the employment contract of a probation officer who, according to the court, had lost sight of the limits of proper communication. This case concerned an employee who became ill shortly after the start of an improvement plan. When the employee fell ill again after a period of reintegration, his attitude and behavior changed. For example, the employee made his dissatisfaction with the employer’s guidance and the improvement process public through statements on Facebook. He posted the following message, among other things: “But what if you, as a probation employee, become ill as a result of overload? Then you will be seen and treated as a criminal by supervisors and even the management. You are not functioning properly..(…)." The employee also posted a Facebook message with the text: "I have not lied a word. Yes, there are executives within the Dutch Probation Service who even commit criminal offenses. (...)." The employee refused to comply with the employer's request to remove the negative messages.

The court ruled that 'freedom of expression does not extend to an employee being allowed to make incorrect statements about his employer, at least to disclose unproven and insufficiently established facts, with the intention to damage the employer's reputation, or at least to accept the consequence that the reputation is damaged.’ If an employee believes that social abuses are taking place within the organisation of the employer, it is in the right place to report to the House for the Whistleblowers, instead of making statements on social media, the court said.

In April 2021, the Amsterdam Court of Appeal considered whether the employment contract with an employee of Greenpeace (a highly skilled migrant of Chinese descent) had been rightly dissolved by the court. The employee had made emotional, violent and aggressive statements on his private Facebook page (with 200 friends) aimed at using and condoning violence against demonstrators in Hong Kong (who were protesting China's policy towards Hong Kong) as well as targeting against eating insects in favor of health and the environment. According to Greenpeace, these statements violate the internal rules of conduct that enshrine the core values ​​of the organization: protecting the environment and the pursuit of peace. Unlike Greenpeace, the employee believes that these core values ​​should not permeate his personal life to the extent that it restricts his right to freedom of expression on social media.

The Amsterdam Court of Appeal considered that Greenpeace is an employer with a strong political, ideological and social vision. This means that the employee must take these core values ​​into account, both within his work and outside of it. The court also took into account that at the time of posting of the messages it was visible that the employee was working for Greenpeace, so that he created the risk that Greenpeace would be associated with his statements. This can damage Greenpeace's reputation and also financial damage, the latter if donors withdraw. The court ruled that the statements of the employee are contrary to good employeeship and that the court had rightly terminated the employment contract.

For employers who want to take action against statements made by employees on social media, it is important to realize that not every unwelcome statement can lead to dismissal. Sometimes 'milder' sanctions will suffice. This is the case, for example, if it does not concern clearly inadmissible statements and it is not visible for which organization the employee works, so that the employer cannot be associated with the statements of the employee. This can also be the case if the employee – addressed by his employer – apologizes and deletes the message. Employers are advised to immediately request employees to remove unwelcome messages on social media. A social media code of conduct can help the employer to demonstrate that certain statements are considered undesirable within the company.

If you have any questions about this subject or if you need help drawing up a code of conduct, you can contact Van Bladel Advocaten via info@vanbladeladvocaten.nl or at (+31) 030-2203111.

Heleen Dammingh

11-02-2023What can an employer do against statements of employees on social media?

These days, it is common for employees to make negative statements about their employer on social media or to express themselves in a way that is contrary to the nature of the employer’s business or company. Can the employer undertake anything against such negative statements? Yes, they can. Statements on social media are regularly a subject of dispute in court proceedings. Below I will briefly discuss two recent judgments where the employer had requested termination of employment as a result of statements on Facebook.

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11-01-2022Full transition payment for partial continuation of employment contract

In 2018, the Supreme Court ruled (in the so-called 'Kolom judgment') that an employee may be entitled to a partial transition payment in the event of partial termination of the employment contract. But what happens to the right to a transition payment if an employment contract is not officially “terminated” and the parties only implicitly make an agreement that fewer hours will be worked? This question recently has been considered by the court of Central Netherlands (judgment 30 April 2021 Central Netherlands District Court).

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11-11-2021What can an employer do against statements of employees on social media?

These days, it is common for employees to make negative statements about their employer on social media or to express themselves in a way that is contrary to the nature of the employer’s business or company. Can the employer undertake anything against such negative statements? Yes, they can. Statements on social media are regularly a subject of dispute in court proceedings. Below I will briefly discuss two recent judgments where the employer had requested termination of employment as a result of statements on Facebook.

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05-11-2021Dismissal due to regular sickness absence often unsuccessful

Article 7:669 paragraph 3 sub c of the Dutch Civil Code lists the grounds that an employer can submit to the UWV or the subdistrict court judge to terminate the employment contract. One of these grounds is “regularly unable to perform the stipulated work as a result of illness or defects of the employee with unacceptable consequences for the business operations…”.

On September 3, 2021, the District Court of The Hague ruled in a case in which the employer based the request to terminate the employment contract on this ground. The ruling shows why a dismissal on this ground often has no chance.

What was going on?

The employee has been working as a car technician at a car dealership with several branches in the Netherlands since 2013. He was employed at a local facility and was part of a team of five employees working in the workshop. In 2017 he had called in sick 4x (104 hours in total), in 2018 8x (173 hours in total), in 2019 23x (468 hours in total) and until July 10, 2020 13x (400 hours in total). The employer had requested an expert opinion from UWV and it followed from that opinion that UWV was of the opinion that there was frequent absenteeism and that this situation was expected to last longer than 26 weeks.

What did the court rule?

The court first establishes that there is frequent absenteeism within the meaning of article 7:669 paragraph 3 sub c BW. The follow-up question is whether this absenteeism leads to unacceptable consequences for the employer's business operations. According to the court, that is not the case. The employer had stated that customers would be dissatisfied with the workshop activities of the branch, but could not substantiate this, according to the court. In addition, the court considers that a company of a size such as that of this employer (with several branches in the region and throughout the Netherlands) can in principle be expected to take care of absenteeism company-wide. The fact that it is not possible within its organization to provide replacement from another location, because there is a large group with all kinds of different car brands and a mechanic who works for one car brand at one location is not as easy as a mechanic can work for the other. According to the court, a different car brand at a different location has not become plausible. The employer was also unable to demonstrate that there was a (serious) financial disadvantage. The court therefore rejected the request for dismissal.

Conclusion

This court decision once again makes clear that – certainly for larger employers – it will not be easy in the Netherlands to dismiss an employee on the basis of frequent absenteeism. Proof of the high level of absenteeism due to illness is often not the problem, but proof of the unacceptable consequences for the employer's business operations is often an unviable route.

If you have any questions about absenteeism and dismissal, please do not hesitate to contact one of the specialists at Van Bladel Advocaten via (+31) 030-2203111 or info@vanbladeladvocaten.nl

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07-07-2021Full transition payment for partial continuation of employment contract

In 2018, the Supreme Court ruled (in the so-called 'Kolom judgment') that an employee may be entitled to a partial transition payment in the event of partial termination of the employment contract. But what happens to the right to a transition payment if an employment contract is not officially “terminated” and the parties only implicitly make an agreement that fewer hours will be worked? This question recently has been considered by the court of Central Netherlands (judgment 30 April 2021 Central Netherlands District Court).

Read article

29-10-2020Can an employer require from his employees to wear a face mask?

The Dutch government urgently advises to wear a face mask in public indoor spaces. There is no legal obligation (yet) to wear a face mask, but many employers are considering to introduce a face mask obligation into the workplace. What about from an employment law perspective?

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29-10-2020What employers need to know about working from home

As a result of the coronavirus, a large part of the employees has been working from home for more than six months. Now that the number of infections is increasing again, it seems that this will last for a longer period. This blog covers a number of employment law aspects of long-term work from home, such as health and safety rules, the employee’s freedom of choice with regard to working from home, the monitoring of the work by the employer and the reimbursement of (additional) costs. Finally, attention is paid to the phenomenon of ‘home working arrangement’, because we notice that many employers consider to introduce such arrangement.

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11-08-2020Holiday and corona: what about the right to pay?

The holidays have started. What about wages when an employee goes on vacation to an area with a yellow, orange or red travel advice?

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06-07-2020Does the employee have a right to working from home in connection with Covid-19?

Many companies let their employees work from home as much as possible in recent weeks in connection with the corona crisis. Employees are slowly returning to the office now that the virus seems to be under control. Companies will have to ensure that work in the office can be carried out in a safe manner and must therefore take measures to prevent the spread of the virus at work as much as possible. Suppose the employee does not like to return to the office. Can he or she refuse to go back to the office, given the applicability of Dutch employment law? In a case that was brought before the Gelderland District Court, the judge ruled on June 16, 2020 that this was not allowed.

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18-05-2020Remarkable Supreme Court decision: Employers be alert to your employee's request to change employment

This so-called Victoria ruling of the Supreme Court of 21 February 2020 can have far-reaching consequences for employers who are confronted with a request from their employee to change the employment contract to work fewer hours (based on the Flexible Working Act) or another change proposal that they must reasonably accept as a good employer. Such a request can, under certain conditions, lead to a partial transition payment. Employers must be prepared for such a request to be made in termination proceedings, so that the employee will remain employed if the request is honored by a judge, even with a full dismissal ground. The Supreme Court thus strengthens the position of the employee.

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08-05-2020Change NOW: application for individual operating company under conditions possible

On 1 May 2020, the next change to the NOW was announced and finalized. The group provision has been relaxed, in that operating companies can now also apply for NOW separately if the group's loss of turnover is less than 20%.

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09-04-2020Amendments to the Temporary Emergency Measure Bridging for Work Retention Regulation (‘NOW’)

The NOW regulation, which was announced on March 31, has already changed in a few areas. This mainly concerns an extra test when submitting a dismissal application for business reasons during the NOW period and a change in the way in which the fine that applies is calculated. In this blog we inform you about the changes.

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31-03-2020Publication details of Temporary Emergency Measure Bridging for Work Retention regulation (“NOW”)

Today, 31 March 2020, the Dutch government has published the details of the Temporary Emergency Measure Bridging for Work Retention regulation (“NOW”). The NOW aims at making it possible for employers to retain their employees as much as possible in the event of a loss of turnover of at least 20% as a result of the Corona crisis. To this end, a compensation in wage costs is provided of a maximum of 90% of the wage bill, related to the percentage of the decrease in turnover. Below the most important questions and answers are summed up.

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24-03-2020Q&A for employers in times of Covid-19

Van Bladel Advocaten has received several questions in relation to the Covid-19 virus in relation to the workplace over the last weeks. We have bundled the most relevant questions in this blog. Please refer to our website regularly for updates and new developments.

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18-03-2020Dutch measures with regard to labor costs related to COVID-19

The Minister of Social Affairs announced on March 17, 2020 that employers can apply for a compensation of wage costs if they expect at least a 20% loss of turnover due to the Corona crisis. This compensation scheme, the Temporary Emergency Measure Bridging for Work Retention (NOW), temporarily replaces the current reduction in working hours regulation that has expired immediately.

Although the scheme has yet to be worked out in detail - which is expected to happen within the next two weeks - the following is known:

 

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10-03-2020Corona virus and employment law – an overview for Dutch employers

The so-called Corona virus (COVID-19) has also reached the Netherlands. Worldwide measures are being taken to prevent further spread of the virus. What does this mean for local employers and employees? This article answers questions about the obligation of the employer to prevent contamination, the entitlement to salary (whether or not in quarantine), privacy aspects and the Dutch subsidy arrangement on shortening of working hours (“Werktijdverkorting”).

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