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Dismissal following comments by spouse on weblog

16/08/2012

The Dutch Administrative High Court [Centrale Raad van Beroep] recently ruled that it is not only one’s own comments on the internet that can result in dismissal, but also those of one’s spouse.

Negative comments in a blog

The woman in this case worked alongside her husband as a teacher in a practical training school. The woman's husband set up a weblog in which he made negative comments about the school and his colleagues. While the woman was aware of the blog, she did nothing about it. In fact, she actually provided her husband with information for the blog. When their colleagues found out about the blog, it led to unrest and complaints started to flood in. The school then tried to resolve the problem amicably and asked for the blogs to be removed from the internet within a reasonable period. When it became clear that neither the woman nor her husband had any intention of removing the blogs, the school decided to dismiss both of them.

Disrupted employment relationship

The woman objected to the dismissal and filed an appeal. The District Court [Rechtbank] found that the fact that the woman had not distanced herself from her partner's comments was not an adequate reason for dismissal. The District Court did, however, hold that all the fuss had disrupted the employment relationship. The decision was set aside, however, since the school had not investigated whether there were any relocation prospects available. Following this judgment, the school made a fresh decision in terms of which the dismissal was upheld, since there were no relocation prospects available within the school. New proceedings before the District Court subsequently confirmed this decision.

Uncooperative attitude

The case then went to the Dutch Administrative High Court. The Court felt it was significant that the woman had not distanced herself from the blog, had shown no remorse and had not even displayed any empathy for her colleagues who had been the subject of the adverse comments. The Court also felt it was significant that the woman had provided information to her husband for the blog and had given no indication of any intention to stop doing so in the future. The Court upheld the dismissal by confirming the judgment against which the appeal had been submitted.

Tips

This judgment forms part of the trend confirming that public workers/employees have to be increasingly careful about how they manoeuvre on the internet. The internet is an open forum and online comments can reflect on the employment relationship with an employer in certain circumstances. This does not, of course, mean that employers can proceed to dismiss employees willy-nilly when they discover any negative online conduct. As an employer, you would be well advised to bear the following points in mind, at the very least:

  • Use a clear online protocol. This protocol can be promulgated throughout your organisation in, for instance, the staff manual. It should for example indicate websites that are not permitted, the extent to which private use is permitted and how the employer will monitor and enforce the protocol. Keep in mind any rights of endorsement that the works council [ondernemingsraad] may have in this context.

  • Make sure that the consequences are clear. Inform your employees in advance about the penalties that will be imposed if the protocol is not observed.

  • Do not proceed with an immediate dismissal. You should first point out the possibility of removing the blog and/or any negative comments, which would amount to an amicable resolution of the situation. The situation may only provide good grounds for dismissal if the employee (or the partner) is not prepared to co-operate.

  • The safeguards that are in place for "normal" dismissals will also apply to any dismissal arising from activities on the internet. Employees should be aware that they do not enjoy carte blanche on the internet, although employers must also observe the normal dismissal safeguards for cases involving the internet. Online activities are increasingly being regarded as equivalent to offline activities in labour law.

Authors

Niels-Koene-CMS-NL
Niels Koene
Attorney-at-law
Amsterdam