The unfortunate cyclist: a lesson in employment law.

November 17, 2017 - Quotidiano del Lavoro/Il Sole 24 Ore
di Sergio Barozzi

The recent story of the cyclist, Juli Briskman, who lifted her finger (more specifically the middle finger) at President Trump had an interesting development on the work front. Juli was in fact fired by her employer based on the consideration that she had published an ‘obscenity’ on her own personal social media account which violated the company’s existing social media policy … ironically part of her job with the company (now former company) was to monitor the company’s social media. The employer has maintained that the photo could have jeopardised the image of the company even though there was nothing on Juli Briskman’s social media account to say she was employed there or in any way connected to the company.  Indeed Juli’s name being linked to the company only  became front page news after (and conjecturing … possibly due to) her dismissal.

This situation is quite interesting and could easily be considered in terms of the Italian legal system: Would a dismissal of this sort be legal and legitimate under Italian Employment and Labour Law? The anwer would most likely be ‘No!’ unless the employer had a clear policy on the use of social media which prohibits behaviour of this type.  However, in any case the lack of a connection between the employee and the employer on social media would render even a clear social media policy, in Italy, on this type of behaviour useless.

An employee in a similar situation under Italian law would be able to invoke the right to criticise and express his /her political ideals as granted by the Italian Constitution. It is interesting to note that contrary to popular belief the principle  of the freedom of opinion does not constitute a protection, in terms of employment law, in the United States. It seems odd as the 1st Ammendment of the American Constitution prohibits  punishment for expressing an opinion ( “Congress shall make no law …. prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”) but this guarantee does not extend to employment in the private sector. The consequences mean that in the United States an employer can fire an employee in reaction to the expression of an unpleasant thought. It is strange, as touched on above, that the Italian principle which provides that “Everyone has the right to freely manifest his/her thoughts with words, through writing and any other type of diffusion”, as provided for by Article 21 of the Italian Constitution, would not apply in one of the freest countries in the world.

An employee in Italy in a similar situation could sustain that the gesture, which was certainly not educated, does not construe an obscenity and thus grounds for dismissal in a context, such as an Italian one, where there is  considerably more freedom of speech. This is even more so if a similar behaviour or language has not been previously challenged by and the employer and the company stayed silent or failed to reacted for example with displinary procedures or other appropriate measures.  In fact, this is just one of the objections raised by Juli Briskman in terms of her dismissal as she alleges that in the past a manager in the company, who had actually used a reference to their  employer in their  social media profile, had previously published some colourful language on their social media without losing their job.

In Italy, Juli Briskman would have another alternative: she could also raise a claim of unlawful dismissal based on discrimination.  Can the policy that led to her dismissal be considered fair from the point of view of ethnicity, religion and gender, and has it been given a neutral and non-discriminatory application? If the answer is no, then such a dismissal in Italy would be illegitimate with the consequence that the employer would need to pay the employee ( now ex-employee) damages.

Tagged with: , , , , ,

This is a unique website which will require a more modern browser to work!

Please upgrade today!