Case Law Update: Freedom of expression
The European Court of Human Rights (ECtHR) has recently ruled that the dismissal of an employee for giving a newspaper interview breached his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).
The individual was employed in Armenia although the case is relevant to UK employment law as, despite Brexit, the UK remains a signatory to the ECHR, which continues to be incorporated by the Human Rights Act 1998 into domestic law. This means that decisions of the ECtHR continue to be relevant to UK law.
In an employment context, Article 10 often intersects with issues of confidentiality and whistleblowing, creating tension between an employee's duty of confidentiality and their right to express concerns. Whilst there is no standalone claim against a private sector employer for breach of Article 10, employees in this position could seek to argue that their dismissal must be unfair where their Article 10 rights have been breached.
In Aghajanyan v Armenia the ECtHR found that the dismissal of an Armenian employee for speaking to a newspaper violated his Article 10 right to freedom of expression. The employee, a senior researcher at a private chemical factory, had disclosed sensitive information relating to environmental risks and workplace safety, which he believed were being neglected by his employer. The factory dismissed him, citing a breach of confidentiality and reputational damage caused by revealing commercially sensitive information.
The ECtHR recognised the public interest in the employee’s disclosures, particularly as they related to the environment and workplace safety, which are areas of significant societal concern. While the employee had shared sensitive information, the Court found that the Armenian courts had not properly balanced the employee’s duty of loyalty and confidentiality with the public interest in his disclosure. The judgment is a reminder that when employees expose wrongdoing - especially on matters of public concern - they may be protected under Article 10, even if their actions contravene internal confidentiality policies.
The decision reinforces the principle that dismissals linked to public interest disclosures, especially those concerning safety and health, require careful consideration to avoid infringing on the employee’s right to freedom of expression. Employers should ensure they can demonstrate a fair and proportionate response when addressing such disclosures.
This case underscores the importance of balancing employer confidentiality with an employee’s right to expose wrongdoing. It is a reminder that freedom of expression, while qualified, is a vital protection for workers, particularly in whistleblowing scenarios. For UK employers, compliance with whistleblowing protections and ensuring that dismissals do not disproportionately restrict free expression is key to avoiding breaches of Article 10.
If you have any queries in relation to a concern about a confidentiality breach, whistleblowing or any other area of employment law, please contact our employment team.
