Workers’ voice at the workplace

Freedom of speech and legality before the European Court of Human Rights

Stefano Maria Corso, University of Urbino

Regardless of potential retaliation on the workplace, on one hand, and of the increasing awareness, on the other, of the fact that the workplace must be (or become) a place where individuals can fully exercise their right to freedom of speech, the protection of workers’ voice, whistleblowing and its recognition as a social right have been only recently discussed by the European Court of Human Rights.

This paper shall be arranged in five chapters, starting with this introduction.

The First and the Second chapters briefly review the steps that led the Court of Strasbourg to investigate the issue through appeals regarding the alleged violation of the right to freedom of expression, protected under Article 10 of the European Convention on Human Rights. Gradually, the fields of application of the regulation were further extended and supplemented and, to date, the regulation represents one of the key pillars – not only at the European level – to turn to, when internal measures are no longer sufficient to protect workers’ freedom of speech (and, in particular, whistleblowers) from retaliation in the workplace.

The Third looks at the role played by the 2008 Guja ruling where the Court drafted a sort of a manual providing the criteria to be used to verify the legitimacy of the restrictions imposed by governments on the matter.

The Fourth surveys the typical proceeding on a case by case basis, describing subsequent judgements with a particular attention to the consequences suffered by the employee (i.e. dismissal).

The Fifth looks at future prospects, supporting the idea that in a balance between individual rights and public interest in whistleblowing, particular attention should be paid to the legal definition of a whistleblower, as it emerged from the Guja ruling. In fact, the analysis of the phenomenon started exactly from there and then continued and became a point of reference for subsequent Court rulings. Therefore, such ruling is particularly relevant for a number of reasons: it may be considered a key to the interpretation of national regulations; it provides valid orientation to public and private entities and facilitates the judge’s task in interpreting whistleblowing cases according to a legal framework that is still in a stage of evolution in many countries, but has instead already been consolidated through the implementation of specific regulations in others.