Article 10 of the European Convention on Human Rights provides that everyone has the right to freedom of expression, which includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority. However, the right is subject to restrictions prescribed by law and are necessary in a democratic society, e.g. for the prevention of crime, for the protection of health or morals, or the reputation or rights of others, for preventing the disclosure of information received in confidence, etc..

In Rubins v Latvia, Rubins, a Latvian University Professor, was made aware of a proposal to merge his department with another, with the result that his post would cease to exist. Rubins sent a number of emails to the University Rector and several other recipients in which he criticised the lack of democracy and accountability in the University leadership, alleged mismanagement of the University’s finances (based on a State Audit Office report), spoke in unfavourable terms about several representatives of the University’s management and proposed a number of amendments to the University’s constitution. Rubins then proposed a settlement agreement, indicating that if the matter could not be resolved he would appeal and make everything public. Rubins was dismissed on the basis that the settlement email made inappropriate demands, including elements of blackmail and undisguised threats.

A majority of the European Court of Human Rights (5 to 2) held that the dismissal was in breach of Article 10. While dismissal was prescribed by Latvian law and pursued legitimate aims (i.e. duties should not be fulfilled in a way that disregards good morals and are incompatible with continued employment), in the circumstances, it amounted to an unjustified interference with Rubin’s right to freedom of expression as the issues raised by Rubin were of some public interest and the truthfulness of the information had not been challenged. The minority considered that Rubins was not dismissed because of any expression by him of his opinions. It was Rubin’s conduct, which contravened the University’s regulations, i.e. making threats amounting to “blackmail”, that caused his dismissal.

The majority ruling provides an opportunity for litigation in circumstances where whistleblowing protection does not apply as the matters raised do not come within the list of qualifying disclosures in S.43B(1) of the Employment Rights Act 1996. However, the minority view potentially shows a defence where it can be shown that the reason for dismissal was not the nature of the allegations, but because of the way in which they were made, which constituted misconduct. In this case there was a victory for the nature of the information over the employee’s motives.

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