Background:

The applicant worked as a senior researcher in a factory producing chemical products. The factory ownership was split between a private company and the Government. Salary levels of employees was regarded as a commercial secret and a specific confidentiality clause was placed in the employee’s contract of employment.

The applicant had raised concerns with how certain chemicals were being handled. He outlined other ways in which they could be handled and wanted to carry out an experiment.  This was allowed by a managing director and the head of the scientific department was informed. The head of the scientific department told the applicant that he could not carry out the experiment and he was threatened with dismissal or demotion.

Following this the applicant did an interview with a local newspaper which outlined the particular shortcomings of the factory relating to the handling of the chemicals but also lamented the fact that he was only earning 85,000 Armenian Drams per month compared to 3-4 million Armenian Drams for the deputy directors. The applicant was then dismissed without notice as a result.

Outcome:

The applicant challenged the dismissal in the civil courts on the basis that he was unaware of the nature of commercial secrets and that the idea of ‘loss of trust’ as put by the employer was not substantiated under the Labour Code. The District Court allowed the applicant’s appeal and declared the dismissal invalid. The employer appealed and was successful.    Subsequent evidence was put forward to the European Court of Human Rights by the applicant outlining that there had been an explosion and fire at the factory where the chemicals had been stored. The employer stated that it had been due to hot weather.

The applicant appealed on the basis of a breach of Article 10 of the Convention which is the freedom of expression. The argument made was that he was a whistleblower and there were insufficient guarantees for such people in domestic law.

The European Court of Human Rights stated that the freedom of expression does apply to the workplace. They cited that the protection of Article 10 not only applies when the employer is governed by public law but may also apply when they are governed by private law. This is on the basis that the State has a positive obligation to protect the freedom of expression even against interference by private individuals. In applying these principles, the ECtHR found that the domestic courts failed to assess the case in light of Article 10 principles. They had not outlined which statements from the interview were regarded as inaccurate or false. The court acknowledged the duty of loyalty and discretion of employees to their employers but that such duty may be overridden by the interest which the public may have in particular information. This was the case relating to the particular points raised by the applicant relating to safety.  Considering the action taken against the applicant was the most severe, that being dismissal, it was found that there was a disproportionate interference with the applicant’s freedom of expression.

Practical Guidance for Employers:

An interesting case demonstrating how the freedom of expression within the European Convention on Human Rights can cut across into employment matters. Within Northern Ireland and the wider United Kingdom, the issues raised would be dealt with as a protected disclosure but it should be noted that the reason for such protection within the legislation is to ensure compliance with the relevant human rights operating behind that.  Failure to allow for such application could lead to a human rights claim within the domestic and international court systems as well.

https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-236131%22]}