Author: Akash Nath is a fourth-year student of law at the West Bengal National University of Juridical Sciences.
On August 8, 2023, the Madras High Court acknowledged employees’ “right to vent” as part of their collective bargaining rights, emphasizing freedom of speech within the digital realm. This case centred on an employee who was dismissed for criticizing his employer in a private WhatsApp group. The court ruled that such communication falls under protected speech, particularly when it involves union activities and is confined to private spaces. However, the judgment’s heavy reliance on privacy raises concerns about limiting public-facing trade union activities, which have historically relied on open demonstrations. The ruling prompts important questions about the scope and limits of employees’ rights to express dissatisfaction, especially in a digital context, and how privacy arguments may affect future interpretations of labour laws. Balancing free speech with employer reputation remains key, with this article advocating for a malice standard to distinguish legitimate criticism from harmful or defamatory remarks.
On August 8, 2023, the Madras High Court (“MHC”) passed an order recognising employees’ right to vent in the context of collective bargaining.[i] The case revolves around the right to form unions, the petitioner’s right to freedom of speech and expression, as well as the application of privacy rights within a closed group on a digital platform. [ii]
This blog aims to dissect the judgment, particularly its reliance on privacy as a foundation for workers’ rights, and explores the potential implications for trade unions (TUs). While the judgment marks a step forward in acknowledging employees’ rights in digital spaces, it inadvertently raises concerns about diluting the public-facing aspects of union activities and the broader implications for labour law.
A. Case Overview and General Comments
The petitioner, an employee of a Bank was also an office bearer of the Bank Workers Union and had active involvement in trade union activities. In 2019, the bank issued a circular prohibiting employees from expressing views or criticism on social media or the internet that could harm the reputation of the Bank. This included criticism of management, policies, or officials, and extended to all platforms. Further, engaging in collusive behaviour with other employees was prohibited.[iii]
The petitioner faced disciplinary action initiated by the bank’s management owing to a WhatsApp group created by him to organize union activities and facilitate communication. The petitioner had posts, wherein he expressed critical and objectionable messages about the bank’s administrative process and higher authorities. As a result, the petitioner was dismissed and a charge memo was issued against him, accusing him of violating the Circular.
In its judgement, the court read down the circular. §25T of the Industrial Disputes Act (“IDA”) prohibits employers from committing unfair labour practices.[iv] Unfair labour practices are categorised under the fifth schedule, and mean any restrain of workmen from the exercise of rights to “organise, form, join or assist a trade union” or engage in collective bargaining.[v] The court noted that the essence of employees uniting is to engage in constructive dialogue with the management concerning their service.[vi] Employees may find it imperative to advocate and assert their demands even in opposition to the management. These actions are lawful and protected under Article 19(1)(a) of the Constitution which underscores the right to freedom of speech and expression.[vii]
In such a context, the court recognised a “right to vent” or voice our grievances. It further held that management can intervene only if the process detrimentally impacts the organization’s image. In Anil Kumar A.P vs. Mahatma Gandhi University and Ors., it was recognised that expression of discontent through social media is an inherent facet of an individual’s right to free speech.[viii] Further, in Dr. Prasad Pannian v. The Central University of Kerala and Ors., it was held that with regard to social media posting, the nature of criticism or comment would be relevant in constituting misconduct. A right to express their opinions cannot be restricted solely based on their employment status.[ix]
If an employee articulates views on social media that align with the collective interest of the institution, this falls within the realm of free speech rights.[x] A large portion of the judgement focused on the fundamental right to privacy.[xi] Group privacy allows protection to any expression that is not in violation of the law.[xii] Despite being “distasteful”, any expression cannot be a basis for action.[xiii]
B. The Privacy Dilemma and Erosion of Trade Union Rights
The majority of the reasoning in the judgement was based on privacy. The court went as far as to say that the management would have been unaware had the workmen discussed it over tea outside a shop. Even if derogatory, the court solely emphasised on the private nature, “without access to the public” as a reason for not attracting action under conduct rules. This has been previously held in cases such as Retheesh P.V vs. Kerala State Electricity Board Ltd.[xiv]
The judgment in question excessively emphasizes privacy as a basis for not taking action against an employee expressing critical views about their employer. The reliance on privacy to justify its decision, while perhaps fitting in the narrow context of the case, risks undermining the broader rights of TUs. I submit first, that the heavy reliance on privacy in the aforementioned judgment raises legitimate concerns about the potential dilution of rights granted to workers as enshrined in the IDA and the Trade Union Act(TUA), as the impact of this judgment on future legal interpretations in public contexts can be harmful.
Trade unions have historically voiced demands in public settings quite literally. This includes strikes or demonstrations. The right of TUs flows from §18 of the TUA as well, which exempts liability with respect to acts that are performed in furtherance of trade disputes.[xv] In Kameshwar Prasad and Ors v. State of Bihar and Anr., the right to demonstrate peacefully was held to be a valid right.[xvi] It is a “peaceful manifestation of … feelings and sentiments”.[xvii] As a result, many cases have held peaceful agitation outside or within industrial establishments to be legal.[xviii] The MHC itself in a 1982 case, conferred to workmen the “statutory rights to convey to the management and the public, how they are impacted, their concerns and feelings.[xix] In 1992, this right was extended even to demonstrations such as dharanas.[xx] Along these lines, another MHC decision held that there can be no embargos for bank employees freely voicing their opinions regarding their employers.[xxi] This establishes a legal precedent acknowledging the right of employees to freely voice their opinions and views regarding their employers, not just in private, but in public spaces.
When historical jurisprudence gives this right to TUs for practically all scenarios – private or public, the judgment’s heavy (and unnecessary)[xxii] focus on privacy thus raises concerns. By framing the employee’s actions within the narrow confines of a private WhatsApp group, the court leaves unresolved the question of whether the same protection would apply if the comments had been made in a public forum—such as an open Facebook group or on Reddit, where union members and non-members alike might participate.
Opponents may argue that allowing unrestricted public expression of dissent could harm an employer’s reputation, potentially opening the door to defamation. However, it is worth noting that the TUA and IDA already provide safeguards against defamatory conduct, and courts have long recognized the importance of balancing employer interests with the rights of workers to voice their concerns. Thus, however, having established a right to vent, a second question that arises is : To what extent is the right to vent permissible? Is it unrestricted?
C. The Scope and Limits of the Right to Vent
The answer is mostly simple. Article 19 of the Constitution itself has restrictions. But from a labour perspective, the term “misconduct” has no set definition, with judicial interpretations of it rarely being consistent. In some cases, courts have frequently read misconduct in an excessively broad way, even holding peaceful demonstration as part of it.[xxiii] It may be relevant to note that recently a MHC judgement stated: even the use of “abusive language” directly against superiors does not warrant the dismissal from services and is disproportionate.[xxiv]
TUs cannot claim complete immunity for their acts and statements. In the public sphere, of course, the standard is that any act should not be defamatory and cause irreparable harm to the company or employer. However, there is uncertainty regarding any standard when it comes to private union activities – and the MHC in the case discussed, does not go into this question.
While the right to vent is important, it cannot be malicious and malign the reputation of an employer. But this is simple; the main concern is with regards to the instigation of workers. An employer would inevitably want to protect their reputation and lower the chances of unionisation and discontentment within the organisation. While concerns about disruption within the workplace are valid, communication and addressing grievances is necessary for the workers’ welfare. A carefully defined level of immunity allows for fair concerns to be raised without causing undue disruption.
However, unfettered communication should be the priority for any workman. If grievances are not put forth, workers unaware of concerns in their employment, may never advocate for their rights. Thus it becomes necessary for a certain level of immunity if fair concerns are raised, and result in instigating neutral or loyal workers against the employer. Malice would however still be relevant as explicitly false and defamatory statements, even in the organisation of campaigns is actionable.[xxv] Thus, balancing the interests, employers have a legitimate interest in protecting their reputation, but employees must have the freedom to voice legitimate concerns, even if those concerns result in dissent or dissatisfaction within the workforce, while also ensuring false and defamatory statements are not shielded, even within the organization. Courts may need to develop a malice standard that is specifically tailored to union activities, ensuring that workers can express discontent without fear of reprisal, while also preventing harmful or malicious conduct. The level of malice could be manifest, as when dealing with these cases as a limited amount of instigation (malicious) may be necessary, especially in today’s context – where labour unions are dying, and the new labour codes further disincentivise workers.
D. Balancing Free Expression and Employer Interests
The challenge lies in balancing workers’ rights to free expression with the legitimate interests of employers in protecting their reputation. Courts must carefully define the limits of permissible speech within union activities, particularly in an era where social media amplifies the reach of such expressions.
In this regard, I propose several factors for courts to consider when adjudicating cases involving the right to vent:
1. Is the workman’s expression contextually relevant? It is important to consider whether the expression is relevant to workplace concerns, grievances, or issues affecting employees’ rights or well-being. Any and all kinds of venting especially in a public context may not be tenable for the business.
2. Is the intent (manifestly) malicious or defamatory? Courts should ensure that criticism aimed at constructive change is protected, while defamatory statements remain actionable.
3. Does the expression aim for constructive change? Is the expression intended to address concerns and contribute to a better work environment, or is it intended solely to harm the employer’s reputation?
4. Does the expression cause irreparable harm: evaluate if the expression has the potential to cause significant and irreparable harm to the employer’s reputation or the organization’s functioning. A standard similar to that in granting an interim injunction in online defamation suits may be used. Especially, in an online setting, criticism would have higher viewership and is important to be noted when weighting balance of convenience and irreparable hardship.[xxvi]
Thus, there are two conclusions I wish to make: first, while privacy is a crucial consideration, an overly narrow focus on it in this particular judgment can erode trade union rights and the need for a nuanced approach that upholds both individual and collective rights. Balancing these rights is essential for a thriving democracy and a fair industrial landscape. Second, striking a balance between freedom of expression, the responsibility not to cause harm, and addressing employer concerns is crucial. The malice standard ensures that genuine concerns can be raised without fear of reprisal, ultimately promoting a fair and just workplace while not allowing for malicious intent to tarnish the reputation of employers. However, this malice must be manifest.
[i] A. Lakshminarayanan v. The Assistant General Manager – HRM, W.P(MD)No.9754 of 2023 and WMP(MD)No.8689 of 2023. (Madras High Court) ¶9.
[ii] A. Lakshminarayanan v. The Assistant General Manager – HRM, W.P(MD)No.9754 of 2023 and WMP(MD)No.8689 of 2023. (Madras High Court).
[iii] A. Lakshminarayanan v. The Assistant General Manager – HRM, W.P(MD)No.9754 of 2023 and WMP(MD)No.8689 of 2023. (Madras High Court).
[iv] The Industrial Disputes Act, 1947, §25T.
[v] The Industrial Disputes Act, 1947, V Schedule.
[vi] A. Lakshminarayanan v. The Assistant General Manager – HRM, W.P(MD)No.9754 of 2023 and WMP(MD)No.8689 of 2023. (Madras High Court) ¶9.
[vii] The Constitution of India, 1950, Art. 19(1)(a).
[viii] Anil Kumar A.P vs. Mahatma Gandhi University and Ors., WP (C) No 27355 of 2018, dated 28.09.2018.
[ix] Dr.Prasad Pannian v. The Central University of Kerala and Ors., WP(C).No.9219 OF 2020(B).
[x] Anil Kumar A.P vs. Mahatma Gandhi University and ors, WP (C) No 27355 of 2018, dated 28.09.2018.
[xi] Justice K.Puttaswamy (Retd.) vs. Union of India AIR 2017 SC 4161.
[xii] A.Lakshminarayanan v. The Assistant General Manager – HRM, W.P(MD)No.9754 of 2023 and WMP(MD)No.8689 of 2023. (Madras High Court) ¶12.
[xiii] A.Lakshminarayanan v. The Assistant General Manager – HRM, W.P(MD)No.9754 of 2023 and WMP(MD)No.8689 of 2023. (Madras High Court) ¶12.
[xiv] Retheesh P.V vs. Kerala State Electricity Board Ltd., WP(C).NO. 14330 OF 2011 (M).
[xv] The Trade Unions Act, 1926 , §18.
[xvi] Kameshwar Prasad and Ors v. State of Bihar and Anr (AIR 1962 SC 1166).
[xvii] Ibid.
[xviii] See, for example, Chndrana Brothers & Ors v. K Venkata Rao & Ors., 1976 (1) KarLJ 245].
[xix] India Bank v. Federation of Indian Bank Employees Union and Anr (1982 I ILJ 123).
[xx] Ahmedabad Textile Research Association v. ATIRA Employees Union & Anr (1992 II LLJ 1994).
[xxi] Writ Appeal 431 and 432 of 2013 and petitions between Thomas Franco Rajendra Dev and another v. SBI management (2013).
[xxii] “The opinion was not expressed publicly. It was shared among the members of a private WhatsApp group.”
[xxiii] T.K. Rangarajan vs Government Of Tamil Nadu & Others Appeal (civil) 5556 of 2003.
[xxiv] S. Raja v. M/s. Hindustan Unilever Ltd., W.P.No.29043 of 2019.
[xxv] See US case Linn v. United Plant Guard Workers, 383 U.S. 53 (1966).
[xxvi] Shreenandini Mukhopadhday, “Interim injunctions in online defamation suits border on censorship”, The Leaflet, October 14, 2022, available at https://theleaflet.in/interim-injunctions-in-online-defamation-suits-border-on-censorship/ (Last accessed on October 6, 2023.
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