Books, hotels, restaurants, products: you can find reviews and rating websites for just about everything on the internet – even employers. However, employees posting internet reviews of their employer should be careful and measured in what they say, or risk being subjected to disciplinary measures – or even dismissal – if they abuse their freedom of speech.
A recent decision of the French Supreme Court provides an illustration justifying such a warning.
A communication agency was warned by one of its clients that a very negative review had been posted (anonymously) on a website specializing in publishing reviews and rating of employers.
The review was formulated as follows: “A communication agency like any other … in appearance. Even though it is lost at the tail end of an industrial zone, with no stores nearby, the premises are pleasant, its equipment is correct and the working groups are friendly. There is nothing wrong with that aspect of the job; the days are pleasant. But things go sour when you look at it over the long run. The management is drastic from every point of view. Minimum wage only, no bonuses or even payment of overtime (except for those foolhardy enough to work on Sunday!!!)… The agency does not even have a website, which is incredible for a company in this line of business! The customer is always right, even if this means working at a loss, and the quality of your own work will sometimes be criticized in front of the customer. There is nothing here to motivate you, except for promises which are never kept, and even then only for the short term. The management makes no effort to hide it: “your motivation is keeping your job”. If proof were needed, witness the constant turnover: “one departure per month on average, for an average workforce of twenty people.”
The company requested and obtained from the website the withdrawal of the relevant review. It also carried out an internal investigation by monitoring he internet logs. It appeared that the artistic director of the company was logged on the relevant website for 30 minutes on the same day the review was posted. The employee acknowledged he was the author of such review, and was dismissed for serious misconduct.
The employee challenged his dismissal, arguing that it was in violation of his freedom of speech. Both the court of appeals and the French Supreme Court dismissed his claim, based on the fact that
(i) the comments made by the employee were excessive, disloyal and malicious, and
(ii) they were made publicly (the review website being accessible to the public, with no limitation).
These two conditions are those commonly used by French case law to assess whether an employee has abused his freedom of speech.
The court also made a reference to the employee’s duties and high level position within the company, which clearly ran against him in the assessment of the seriousness of his misconduct.
This decision gives a perfect illustration of what is unacceptable in the context of employees’ freedom of speech. However, as a general rule, application of disciplinary measures (and even more clearly, dismissal of employees) should be handled carefully when it comes to similar violations as the facts and the context are assessed by the courts on a case by case basis, and there have been instances in the past in which far more critical comments or even personal invective against management has not been found to justify dismissal.
