Settlement Agreements and Freedom of Speech

Settlement agreements are often used by either or both parties for confidentially.

Article 11 of the European convection of human rights states: “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.” This seems pretty straightforward, but what can it mean in the workplace?

When it comes to the workplace, freedom of speech may not apply in the same way as usual. It is obvious that the relationship between employee and employer are not equal, as naturally the employer has the authority to enforce the type of conduct they wish to see in the working environment, within means. Expression of any seemingly defamatory, discriminatory or offensive opinion may result in disciplinary action from by employer for several reasons, including claiming misconduct under qualification and conduct which may justify Outright Dismissal in extreme cases. Furthermore, exceeding expression of any opinion could be seen is forcing views on colleagues and recorded as harassment.

All employees are protected against being dismissed or subjected to any other detriment if related to union membership or activities. The legislation would only apply as misconduct if the employee was "speaking out" in the course of union activities. Therefore it would be necessary for the employee to persuade an employment tribunal that the views expressed was a legitimate part of their role as a trade union representative to comment on the issue. Additionally, the employee would need to justify that the activity took place at an appropriate time.

Moreover, the courts have said that making comments which are malicious, untruthful or irrelevant would not come within the term "trade union activities" and therefore would not be protected. Malicious or untruthful statements might even result in an employee being sued for libel or slander.

The issue of freedom of speech in the workplace is an international issue, which can be seen in the 2015 case of Rubins v. Latvia. Rubins, a Latvian university professor, was notified of plans for his department to merge with another, resulting in the abolition of his post. In turn he was offered a change of contract or that his employment would cease if he refused. As a response to this, Rubins sent a number of emails of complain to the university’s rector and other recipients, criticising several areas such as a lack of democracy in the university’s leadership and also spoke adversely about representatives of the university’s management team amongst other things. Rubins then proposed a settlement agreement, implying his intentions to appeal to make the situation public if the matter could not be resolved.

The university promptly retaliated by dismissing him on the grounds of inappropriate demands, blackmail and disguised threats within his previous emails. If an employee disregards ‘good morals’, dismissal is authorised for misconduct under Latvian law. Rubins made an application to the European Court of Human Rights after the Latvian Supreme Court declined invalidating his notice of termination on basis of his lack of integrity, loyalty and responsibility. The majority of the court believed the dismissal was an unjustified interference with Rubin’s right to freedom of expression, and the court recognised that previous tribunals had established employees owing their duty and loyalty of discretion the employers under Article 10 rights. Yet in this case the candour of the case were not challenged and became of public interest. The minority of judges, believed his conduct, including threats and even blackmail, interfered with the university’s regulations, which was the cause of his dismissal.

Rubins v Latvia is an example of the complications of freedom of expression in the work place and presents problems introduced by an employee and employer relationship within employment law.

Settlement agreements are often used by both parties to

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