8 April 2024

Supreme Court asked to hear appeal over dismissal and academic freedom

Today, our firm filed an appeal with the Dutch Supreme Court on behalf of a former senior lecturer at the University of Groningen (RUG), requesting that a 8 January 2024 decision of the Arnhem-Leeuwarden Court of Appeal be set aside. The case revolves around the question of how closely courts should see to it that scientists' academic freedom and freedom of expression are safeguarded in employment termination proceedings.

The case on appeal concerns the high-profile dismissal of Dr Susanne Täuber, a senior lecturer at RUG's Economics and Business Administration faculty. In 2019, Dr Täuber published an essay in a prestigious academic journal, the Journal for Management Studies. In this, Dr Täuber described how, while participating in the Rosalind Franklin Fellowship programme - a programme aimed at developing female scientific talent - she had found that such equal opportunity schemes can actually be detrimental to female academics. Instead, she argued, they encourage systemic discrimination, partly because they are seen as threatening meritocratic principles. Dr Täuber is a specialist in inclusion and diversity and a member of the Diverse and Inclusive Higher Education and Research Advisory Committee (DIHOO), which advises the Minister of Education on this topic.

The professors in the department where Dr Täuber worked felt their reputation had been tarnished by her essay. The dean of the faculty sent a letter to the journal's editor suggesting that the article might be detrimental to Dr Täuber's career, and even requested that the journal's publication policy be reviewed and amended. Another professor, Dr Täuber's supervisor at the time, sent an email to all of her colleagues indicating that the article was considered "inappropriate and damaging". These kind of topics had to be discussed internally within the department. In 2022, a request for termination (ontbinding) of Dr Täuber's employment was filed based on breakdown in the working relationship.

The Groningen Subdistrict Court found gross culpability on RUG's part, but it did terminate the employment contract. Whether there was a violation of freedom of expression and of academic freedom remained unanswered. Dr. Täuber and RUG both appealed. On 8 January 2024, the Arnhem-Leeuwarden Court of Appeal ruled that the employment contract had been rightly terminated. There was no infringement of freedom of expression, according to the court of appeal, because the essay was a link but not an "essential link" that led to the termination. There is no evidence to suggest that if the article had not been written, the employment contract would not have been terminated. On academic freedom, the court of appeal was silent, placing the responsibility for the termination entirely on the employee.

Arguments put to the Supreme Court today include that the court of appeal did not sufficiently safeguard freedom of expression and academic freedom. An infringement of freedom of expression already exists if an expression of views contributes to the termination of employment; this does have to be an essential contribution. This principle applies even more if that expression also falls under academic freedom. The Supreme Court appeal argues that once an expression falls within the scope of academic freedom, it constitutes a qualified expression, which would require the court to check very closely whether the employer violated freedom of expression and, if so, whether that violation could be justified. The appeal also challenges the court of appeal's decision that the reactions of Täuber's supervisors did not constitute a violation of her freedom of expression, with a potentially chilling effect on the future exercise of that freedom. And finally, the Supreme Court appeal raises the question whether the court of appeal's ruling itself violates freedom of expression, with a chilling effect on the freedom of academic staff at universities to freely conduct research, publish and disseminate those publications. If the Supreme Court takes up the case, its ruling can be expected in 2025.

This case at the Supreme Court level is being handled by a team of De Brauw lawyers, led by employment law and Supreme Court litigation partner Stefan Sagel. Sagel: "The case touches on important fundamental rights: freedom of speech and academic freedom. Academic freedom is certainly under pressure in the Netherlands, unfortunately. Research at the European level shows that the Netherlands does rather poorly in protecting this right; we linger at the bottom of the rankings. By assisting Dr Täuber in this case, we hope to not only help her on an individual level, but also to contribute to strengthening academic freedom in general. It would be a good thing if the Supreme Court were to send a signal that strengthens this right. Our firm has traditionally had close ties with the academic community and we are supportive of its interests. For that reason too, we think it is crucial to handle this case."