Can an employee write whatever they want on social networks if they display their affiliation to the company?

Mario Di Stefano - It's an easy and difficult question at the same time. There are two elements at stake here: the first is the freedom of expression and opinion of employees, which is one of their civil rights. But the second element to be taken into account is that they are employees of an employer who also has a right not to have his company or his activity disrupted by the attitude of employees.

Do words spoken outside and inside the company have the same impact?

I don't think so, I think you have to separate two things: the behaviour of the employee inside the company and outside. If, on the premises, he spreads conspiracy theories, or even harasses people who have been vaccinated, and moreover if he has a fairly high position, then this can disturb the smooth running of the company.

Outside the company, it is less obvious. If an employee takes part in the "white marches" organised on Friday evenings in Luxembourg City, even if they speak against the vaccine, this is normally none of their employer's business, but it must not have an impact on the company. Freedom of opinion has its limits and the employer may consider that spreading conspiracy theories is not compatible with the image and ethics of the company. Imagine an employee who is photographed at an anti-vax demonstration wearing a suit in the company's colours, this could have an impact on the company.

A managing partner, for example, who spreads conspiracy theories on social networks or within the company, may cause clients to disengage or disrupt team cohesion, and this would put his company in a complicated situation.

Mario Di Stefano, lawyer

What are the limits of freedom of expression?

The protection of civil liberties can go a long way, and one can be critical of the government's actions, but someone who starts comparing the vaccination campaign to the Holocaust, for example, who puts a yellow star on himself because he is not vaccinated, who explains that the pandemic is a conspiracy set up by Bill Gates, for example, I think that the limits of freedom of expression are reached.

What can an employer do in such a situation?

I would say that he will already look at the function of the employee in question, as well as his seniority. He will always have more tolerance for a senior employee than for a new joiner, who gets noticed for defending certain nonsense. However, the higher the position in the hierarchy, the lower the degree of tolerance should be, because the risk is higher for the whole company. You have to look at the degree of diffusion. A managing partner, for example, who spreads conspiracy theories on social networks or within the company, may cause clients to disengage or disrupt team cohesion, and this would put his company in a complicated situation.

So it could go as far as dismissal?

In the first instance, the employer can say that they still have hope of reasoning with the employee, and send them a written warning. The employer then reminds the employee that their behaviour could harm the company and damage its reputation. And if the employee persists, the employer will have to consider dismissing them immediately for gross misconduct. And the employer may have other grounds for dismissal.

Could the employer subsequently be sued for unfair dismissal?

It is a risk, but you have to make that decision. Is it better to let nonsense spread and see your company's reputation tarnished, and scuttle your company? Another problem is proving the words and attitude of the employee you want to fire. If the person in question deletes his or her posts on social networks, there is no longer any proof.

Ideally, this should be established by a bailiff, or if things were said in a meeting, for example if an employee harasses his colleagues to sign a petition against vaccination, you need testimonies from these people. The defence we often see is that their account has been hacked, which is a common and not very credible excuse, but you have to be prepared for that response. The employer may also turn to other grounds for dismissal, because if a conspiracy group feels that one of their own has been dismissed for their beliefs, they may also launch a smear campaign against the company, and this will still affect the future of the company. It is important to avoid a debate that can be very divisive. Very often, conspiracy theorists say we have to respect their opinion, but if it's based on what's proven to be a lie, I don't have to respect that.

This story was first published in French on . It has been translated and edited for Delano.