The European Court of Human Rights rules on the limits of a trade union's freedom of expression
On 12 September 2011, the European Court of Human Rights (ECHR) in Strasburg delivered its judgement in the case Palomo Sanchez and others v. Spain. In this judgement, the Court confirms the right to freedom of expression but takes the view that this right cannot be taken advantage of to harm others.
In casu, a number of deliverymen of a Spanish company sought to secure recognition of their social security protection. Therefore, they set up a trade union. They also brought several sets of proceedings against the company. In one of these proceedings, two independent deliverymen testified in favour of the company. The trade union reacted to this with a publication in its newsletter of a cartoon of a sexual nature featuring the two witnesses and the HR manager (the newsletter being distributed among the workers and posted in the company). Inside the newsletter, articles criticized the fact that those independent deliverymen had testified in favour of the company. Moreover, the language used was offensive. As a consequence, the company decided to dismiss for serious cause the trade union representatives who had distributed the newsletter.
The trade union representatives contested this dismissal. In their opinion, the dismissal was unfair. As they were member of a trade union, the dismissal was a violation of their right to freedom of expression.
The ECHR took the view that the right to freedom of expression indeed exists but that it is necessary to make a distinction between criticism and insults. In the case at hand the national court adequately determined the offensive character of the expressions. The national court also took the view that the dismissals were not disproportionate in view of the circumstances of the case. Moreover, in a professional environment, certain actions, such as the indecent assault of individuals, may have such a disruptive effect that serious sanctions are justified. As a consequence, the ECHR took the view that that there is no disproportion between the breach of the union activists' right to freedom of expression and the dismissal.