Yttrandefrihet och lojalitetsplikt inom ramen för den anställdes privatliv - En jämförande analys av arbetsgivarens möjlighet att sanktionera en arbetstagare inom privat respektive offentlig sektor till följd av ett agerande på fritiden
Sammanfattning: A contract of employment comes with the assumption that both the employer and employee acts loyal towards one another. Furthermore, the use of internet has increased immensely during the last couple of years. A consequence of this is a growing debate surrounding an employer's demands on their workers to stay loyal outside of their primary working hours and the employees right to maintain their personal integrity. This essay intends to analyze and compare the public and private sector and mainly an employee's right to use their freedom of speech during their free time in comparison to the obligation to staying loyal towards their employer. Freedom of speech is one of the fundamental rights in Sweden and should not be interfered with by an employer. Within the public sector, freedom of speech is protected by the constitution which entails a challenge for employers to control what their workers do outside of work. The freedom of speech is applicable in relation to the public, which affects the protection towards the private sector. The duty of loyalty instead becomes relevant and sets up the boundaries for an employee's right to express themselves outside of work. Freedom of speech is also regulated in the European Convention on Human rights and mainly the 10th article. The article has immediate enforcement within the public sector while the rights for workers within the private sector are ensured through the positive obligation that each member state has. The main question that arises is therefore how far an employer can limit the employee’s freedom of speech and if there are any differences between the public and private sector. Is it seen as fair to relocate, terminate or even dismiss an employee because of a statement or an act made during one's free time? Even though it would have been desirable to have one straight answer to the question of issue, the area has been proven to be complex with a variety of different outcomes, mainly case law from The Labour Court. There is nothing that indicates that it is impossible for an employer to relocate, terminate or dismiss someone based on an act made during one's spare time. A separate inquiry should be made since every case has different circumstances and therefore the outcome can differ. As a result of case law being distinguished it has been challenging to draw one clear conclusion.
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