The High Court of Justice of Madrid has declared appropriate the dismissal of a worker for having made inappropriate comments and references about his colleagues and about the company on twitter. Although it does not expressly name the company or any colleague, and the references it makes are generic; it is considered that it is easy to find out which company is in question, thus damaging its image.
Verbal offenses to colleagues via twitter
A worker provides his services for a company until February 23, 2018, the date on which his disciplinary dismissal occurs. In the letter of dismissal, it is stated that while the company was participating in an international fair, through the comments of a client company, it is known of the activity of said worker in the social network twitter,in which he appears identified with his face and his full name, and publishing controversial comments about the company and his colleagues.
Having learned of these facts, the company verifies:
- that, during successive days, the worker has had activity in the aforementioned social network during his working hours.
- that although in his comments he does not use the name of the company, he constantly refers to his workplace (the office) with completely inappropriate messages (sic. “but how hard it is not to get your cock out in the office; it’s the Monday class where I wish you could watch porn in the office, you don’t think”).
- that in his comments there are inappropriate and offensive references to his co-workers (sic “the after-sales shit that hates me, we have to work together to help our Indian dealer“).
- in addition, the company is aware that the aforementioned comments are beginning to spread among all employees and are generating a bad atmosphere.
In the light of the facts set out above, the undertaking decides to dismiss the worker disciplinaryly. The latter, after complaining against the dismissal and being declared its origin, alleges that the facts cited are not important, that his tweets have been misinterpreted and decontextualized,and that in no way justify a dismissal, so he files an appeal before the High Court of Justice.
The High Court of Justice considers that the way in which he refers to his colleagues and his bosses in the tweets published constitutes a verbal offense (ET art.52.2 c), which also implies a breach of contractual good faith, since the company in question is easy to identify, and the impression is conveyed to third parties that certain improper conduct may be practised during office hours and at the company’s own headquarters (ET art.52.2 (d).
For the High Court of Justice, these are comments that have been written from a public twitter profile,some of them, published during working hours, which due to their content are free, inappropriate and unedifying, as well as offensive to any worker of the company, including its managers, who are easily identifiable by the data provided. Furthermore, they are indicative of a state of affairs in the workplace in which it provides services that does not exactly seem serious and flattering, which is detrimental to the name and competitive position of the company in the market.
It considers that, although the worker was free to express his ideas and opinions on social networks, the right is limited by the honor of the people to whom he refers, and also, in this case, by the good name of the company for which he works.
Although in his defense the worker has also alleged the statute of limitations for the facts prosecuted,the High Court of Justice considers:
- on the one hand, since it became aware of the tweets, the period of 60 days,since, despite being a network with a public profile, the company cannot be required to review the account of its employees (doing so would generate problems with its employees, who could see their privacy observed);
- and on the other, that the period of 6 months (long prescription) since the publication of the comments on twitter suppose a continuous action, in which the doctrine interprets that limitation period begins to be counted from the day on which the last act was committed.
The Court therefore dismisses the appeal and confirms the appropriateness of the dismissal.
Use of social networks and layoffs. Judicial pronouncements
As we have seen, we must be very careful with the use of social networks and the publications that are disseminated.
Below, we will find other examples of judicial pronouncements derived from the use of social networks by workers.
1 > The High Court of Justice of Asturias, in a judgment of June 14, 2013, declares appropriate the dismissal of a worker for performing certain activities while she was in a situation of Temporary Disability. These activities were proven through the use of photographs that the worker herself posted on her Facebook wall.
In this case, the privacy of the worker is not violated because these photographs had been obtained on the network, without the need to use any password or password to access.
2 > The High Court of Justice of Andalusia, in a judgment of May 22, 2014, declares appropriate the disciplinary dismissal of a worker for insults against the company or against other employees, in a public manner and with a clear vocation of knowledge by the company’s staff. Despite the fact that the opinions have been disseminated from outside the company’s premises and using the personal computer, owned by the employee and not by the company.
3> The High Court of Justice of Catalonia, in a ruling of January 30, 2017, declares the appropriateness of the disciplinary dismissal of the representative of the trade union section, for imputing from the social network Facebook, and in a public way, a conduct to the company that, if it existed, would have criminal repercussions.
4 > The Social Court of Palma de Mallorca, in a judgment on February 28, 2018, declares the origin of dismissal to be published, identifying himself as an employee of the company, comments on social networks about it. Such an act constitutes gross and culpable indiscipline or disobedience. It is irrelevant the absence of profit motive, damage to the company or that the facts have occurred outside the time and place of work.
1 > The High Court of Justice of Galicia, in a judgment of June 5, 2015, declares the validity of the dismissal of a worker in probationary period, which had been communicated through Whatsapp.
2 > The High Court of Justice of Madrid, in a judgment of June 16, 2015, declares the validity of the resignation of a worker presented through the Whatsapp application; since the rest of the facts shows the unequivocal will to break the employment relationship.
3 > The High Court of Justice of the Basque Country, in a judgment of 23 September 2014, admitted as documentary evidence,the examination of Whatsapp messages from a worker’s mobile phone.
4> The High Court of Justice of Galicia, in a judgment of June 29, 2019, declares as the dismissal of a worker who, outside his working hours, reprimed his manager for labor matters, recording the situation that was later disseminated in the company through Whatsapp. Neither is the guarantee of indemnity appreciated, nor is it considered that the psychological pathology of the worker justifies his conduct.
1 > The High Court of Justice of Asturias, in a judgment of 25 October 2013, declares the dismissal appropriate of a worker who, repeatedly, from his computer in the workplace, during the working day, through the company’s Wi-Fi network and circumventing the security devices of the wireless network, accessed numerous web pages to download files, movies and view them during working hours. In addition, the worker made use of the social network Twitter with content that is pejorative for the company, its managers and its customers, as well as demonstrating a totally contemptuous conduct of their work activity.
2 > The High Court of Justice of Navarre, in a judgment of 21 February 2014, declares that the dismissal is inadmissible,as disproportionate of a worker who makes free statements on twitter and harmful to the image and reputation of the company for which he works, when the irregularity imputed to the worker does not occur within the scope of his own professional function, and the worker’s tweets do not become known to the general public, they do not have a personal profit and the damage to the company is not accredited.
3 > The High Court of Justice of Madrid, in a judgment of July 19, 2019, declares appropriate the dismissal of a worker for having made inappropriate comments and references about colleagues and about the company on twitter. Although the company or any colleague is not explicitly named and the references are generic, it is considered that it is easy to find out the company in question, thus damaging its image.
You posted it on your Facebook
An employee criticizes his co-workers and his company on his Facebook profile. What steps can you take in this regard? Is a test obtained on social media valid?
Let’s imagine that a worker posts on social networks various comments against his company, and also, a video mocking a colleague who appears falling to the ground. Is it possible to fire him for acting that way and use a test taken from a social network to do so?
Validity of evidence
If information is obtained on a social network and we want to use it to sanction or dismiss a worker, it is possible to do so:
- Since the employee’s right to privacy will not be violated. The fact that it is the worker himself who freely and voluntarily publishes this type of content in his social profile, implies that he gives his consent so that anyone with access to the Internet (and his social network) can see it.
- As this is lawfully obtained public content,the company may use all this information to apply the disciplinary regime. If it reaches the courts, the judge would accept this type of evidence.
In any case, our recommendation when this type of situation is detected is to discover the criticism, save the file or print a proof of the fact. If the case is delicate and you prefer to have greater security, you can go to a notary to attest to these publications. Once the evidence justifying a worker’s misconduct has been gathered, it is necessary to verify with the agreement whether the non-compliance constitutes dismissal or a lower penalty, such as a suspension of employment and salary.
Some real examples
Below, we detail some cases in which the company proceeded to the dismissal of one of its workers, based on its social media posts:
- The clerk of a clothing store appeared on her Facebook wearing clothes that had disappeared from the establishment. The company was able to fire her because there was evidence that the employee had not purchased them and that the inventory was out of stock.
- An employee posted on his profile a video obtained by a surveillance camera of the company. The dismissal was appropriate because the video was private and was published without the company’s consent. In addition, a protocol for the use of the electronic means provided to all employees for its proper functioning had previously been delivered.
- It was also declared appropriate to dismiss an employee who falsely reported on twitter that he had been assaulted by the employer. However, we must bear in mind that the publication of comments against a company in a situation of real labor dispute, is not considered constitutive of dismissal.
- An employee who was on leave due to depression would not stop hanging photos in which he was seen partying and drinking. The dismissal was appropriate because, according to the judge, this attitude showed that the disease was fake.
If an employee posts offensive material against his or her company or colleagues, the disciplinary regime applies. Evidence obtained on a social network can be used to justify the dismissal of a worker.
If you have any questions about it, you can contact our advisors in any of our offices,so that we can help you solve it as soon as possible.
