Have you been fired because of your social media posts? Our labour right lawyers in Barcelona have written this article to give you the basic information you might need.
Facebook, Twitter, Tuenti, Flickr, Instagram, Linkedin. These are all names of social media websites that we have all joined in the last few years and as such have become part of our lives. Through these platforms, we share our worries and our thoughts. As a result, we bring ourselves closer to the people we care about, but also, and in most cases unconsciously, we share our privacy with companies that we work for.
There are three main branches to this issue. The first are dismissals which are caused by aworker dedicating the working day, in whole or in part, to browsing social networks instead of completing their assigned tasks. The second type is a disciplinary dismissal derived from comments made on social networks. Finally, activities published or seen through social media can also be grounds for dismissal.
First of all, although article 20 of the Spanish Constitution proclaims freedom of thought, ideas and opinions, the sentence of the Juez de lo Social, found that it does not protect degrading qualifications. Nor can it excuse the use of offensive expressions, which can be tolerated in friendly conversations, but not in other areas. This implies that acting in excess of this right is punishable.
In this sense, the Constitutional Court has established that the right to assess a personal action under the protection of freedom of expression does not protect the issuance of expressions, statements or qualifications that are clearly humiliating or unrelated to certain truthful information.
Dismissals for comments made on social media
Workers often overlook that comments they make on social media can be used by their employer to justify a dismissal.
As the use of social networks grows, the number of dismissal sentences that come from such comments increases.
One of the first courts that analysed this situation was the judgment of the Superior Court of Justice of Castilla y León of April 21, 2010. This sentence justified the dismissal of a worker who had threatened one of the company’s executives through a blog.
It further resulted in the dismissal of a worker, as declared by the Sentence of the Superior Court of Justice of Andalusia of November 10, 2011. This was because she posted photos of the workplace on Facebook, in an incorrect manner and showing the location and model of a safe.
On the contrary, declaring the dismissal inadmissible, we find judgments such as that of the Superior Court of Justice of Madrid of March 30, 2012, in which it is considered that the publication of a humorous anecdote about a client, given its sporadic nature was not serious enough to fire the worker.
Another example is the judgment of the Superior Court of Justice of Murcia of May 14, 2012. This declared the nullity of a representative of a union section’s dismissal. The employee had made a series of comments on Facebook, in clearly inappropriate language. However, the court found the defendant was protected by the right to freedom of expression.
Social media activities used to justify a dismissal
With this type of dismissal, we find the Sentence of the Superior Court of Madrid of January 23, 2012. An employee was fired for transgression of good faith after going on sick leave for depression. Photos emerged on Facebook showing the employee going out at night and consuming alcohol during his temporary leave.
A similar situation is the Judgement of the Superior Court of Justice of Galicia of November 16, 2021. This particular case also deals with an employee who was temporarily incapacitated due to depression. However, images on social media showed that during this period he served drinks in a nightclub owned by a relative and made trips; without the knowledge and authorization of the doctor following his temporary disability process.
The Superior Court of Justice of Madrid of May 28, 2012 was the origin of the disciplinary dismissal of a worker who, in a situation of temporary disability, worked in a business of design and creation of headgear advertised on Facebook.
Finally, the Judgment of the Supreme Court of June 14, 2013, declared the dismissal of a worker who, the day after starting a temporary disability process, travelled to Madrid by plane and was with some friends in an amusement park,as shown by photos she shared on Facebook. Under surveillance of a detective, it was also found that the worker went to bars and danced until the early hours of the morning, which makes it indisputable that her state of health revealed an evident capacity to work on the tasks of her profession as a waitress, given that the leave had started due to a supposed cervical contracture.
The regulations regarding dismissal are complex and, therefore, if you are ever fired because of something relating to social media, you should seek legal advice from a competent and experienced lawyer in labour law in Barcelona at an early stage. It is important to remember that in some cases, your management may not be fully versed in the correct and appropriate procedures. Therefore, it is important to make sure that you have been charged fairly.
Our Spanish labour and employment lawyers can help you with your case in Barcelona, Catalonia or other areas of Spain.