The Labor Law Department of BELZUZ ABOGADOS S.L.P. would like to offer a brief analysis of a number of Judgments handed down by High Courts of Justice where, in disciplinary proceedings for dismissal, these have been declared admissible on the basis of the inappropriate use of social networks such as “Facebook” and “LinkedIn”, or commonly-used free instant messaging services such as “Whatsapp”.
We have already had occasion to comment on the admissibility of using “Whatsapp” as a means of proof in disciplinary proceedings in a case tried by the High Court of Justice of Madrid, which accepted the transcriptions of “Whatsapp” messages in relation to the Court’s unrestricted power to evaluate evidence, taking into account the constitutional doctrine on the subject established by the Constitutional Court.
Although that judgment did not consider whether the submission of this type of evidence infringed the fundamental right to secrecy of communication, a question we consider essential when “Whatsapp” chats are submitted as evidence in employment litigation, the Judgment of the High Court of Justice of La Rioja of 26 January 2016 does look at this issue.
The Labour Division of the High Court of Justice of La Rioja ruled on the legality of the submission by a Company (a third party) of private “Whatsapp” chats between two employees in litigation concerning disciplinary dismissal, considering it to be entirely legitimate because the transcriptions were supplied to the Company by one of the parties to the chat, and the company was not directly involved in recording the chat.
Accordingly, the right to the secrecy of communications established in article 18.3 of the Spanish Constitution is not infringed by a Company that submits the transcription of a “Whatsapp” conversation between employees when it is one of said employees that has supplied the transcriptions.
In cases where employees use social networks such as “Facebook” or “Linkedin” to publish comments, photos, etc. that disparage, humiliate or undermine the dignity of the Company and their fellow employees, the Courts have accepted that the Company’s submission of these offensive comments, photos or publications in the proceedings is legally permissible.
The usual class of offence that results in disciplinary dismissals in these cases is defined in article 54.2 c), of the Statute of Workers, i.e., that consisting of verbal or physical attacks on the employer or persons who work for the enterprise or members of their family. In extreme cases, subsection g) of that article can apply, i.e., dismissal for racially or ethnically-motivated harassment, or that relating to religion or beliefs, disability, age, sexual orientation or gender, and sexual harassment.
In these cases it is worth mentioning the Judgment of the High Court of Justice of Andalusia. It establishes, simply and concisely, some basic principles that, as specialists in employment law, we consider to be particularly relevant in cases of this kind.
Firstly, the Court took the view that, even if the behaviour in question (publication of a photo of a fellow employee on Facebook with explicit sexual comments by the employee dismissed) occurred outside the workplace and working hours, it took place in the context of the working relationship. That is, if no previous personal relationship can be shown to exist between the two employees, the offences are associated with work and originated within the working relationship.
Secondly, with regard to the level of seriousness of the offence and the culpability of the employee, and also the gradualist doctrine to be taken into account in any disciplinary proceedings for dismissal, the Court leaves no room for doubt as to the seriousness of publishing on a social network obscene comments of this type that violate a person’s dignity and have an immediate impact on many people, including other employees or even the employer. That is, what the Court defines as the “exponential capacity to spread” the obscene message is “per se” fundamental proof of the necessary guilt and serious nature of the behaviour necessary to justify disciplinary dismissal.
In conclusion, as lawyers specialising in labour law, in this article our aim has been to offer some brief but very important notes and essential comments concerning disciplinary dismissal procedures in response to behaviour on social networks or using instant messaging apps whose widespread use is well known in Spanish society today, and especially with regard to their repercussions in the field of disciplinary action in relation to employment and the contentious judicial process of dismissal.
Belzuz Abogados SLP
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