Heinisch v Germany: ECHR 21 Jul 2011

The applicant alleged, in particular, that her dismissal without notice from her employment as a geriatric nurse on the ground that she had brought a criminal complaint against her employer alleging deficiencies in the institutional care provided, and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement had infringed her right to freedom of expression.
Held: Article 10 extended to a geriatric nurse in a nursing home who reported her employers to the prosecuting authorities because of the understaffing. Her dismissal without notice on the ground that she had lodged a whistleblowing complaint against her employer and the failure of the domestic courts to order her reinstatement had violated her rights under article 10. Her right to impart information could be restricted if this was in accordance with the law, pursued a legitimate aim (in this case to protect the rights and reputation of the employer), and was proportionate to that aim. The court considered a number of factors relevant to the proportionality calculation, bearing in mind the duty of loyalty owed by an employee to her employer. It was important to establish whether the employee was acting in good faith and had reasonable grounds for the complaint, whether the information disclosed was in the public interest, and whether there was any more discreet means of remedying the wrongdoing; proportionality also required a careful analysis of the severity of the penalty imposed upon the whistle-blower and its consequences (see paras 62 to 70). Hence article 10 operates as a protection for whistle-blowers who act responsibly.

Dean Spielmann, P
28274/08, [2011] ECHR 1175, [2011] IRLR 922, (2014) 58 EHRR 31, 32 BHRC 252
European Convention on Human Rights 10
Human Rights
CitedKudeshkina v Russia ECHR 24-Feb-2009
Article 10 applies to the workplace in general, and a professional person such as a judge is entitled to the freedom to criticise the judicial system. . .

Cited by:
CitedClyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Employment

Updated: 30 November 2021; Ref: scu.442079