With regard to the use of internet and corporate electronic mail, the Report from
the SDPA 0464/2013 reminds us that the jurisprudence in those cases admits that the
employer can control those media, provided that they have previously informed or
warned the worker about the conditions of use and control [e.g. Supreme Court
judgement of 26 September 2007, and CC judgement 170/2013 of 7 October].
The employer must respect the dignity of the worker when carrying out surveillance and control activities (Art. 20 SWR). According to the judgement from the
Supreme Court of 6 October 2011 (RJ 2011, 7699), the right to the worker’s dignity
is not violated when instructions have specifically been given or when the employer
has specifically stated that the computer may not be used for personal activities and
can only be used for strictly professional purposes. In those cases, company records
and surveillance of the computer without previous warning to the worker are
completely legitimate. However, if the employer did not give specific instructions
about the use of internet and the worker used the computer for private activities, it is
possible to interpret that there are certain “expectations of confidentiality” and,
therefore, the records and surveillance must respect the dignity of the worker.
Consequently, a disciplinary dismissal has been considered lawful when the use of
social networks during working hours has been interpreted as excessive [Judgement
from the HCJ of the Community of Valencia of 12 February 2013 (JUR 2013
\1923299)], and it has been deemed unlawful when the behaviour of the worker
was not of such serious nature and the employer had not issued a previous warning
about possible restrictions in this regard or about surveillance activities related to it
[Judgement of the Madrid HCJ of 28 April 2011 (AS 2011\1148)].
Comments posted by workers on social networks may also justify dismissal. This
was the case, for example, in the judgement from the Castilla-La Mancha HCJ of
8 April 2016 (JUR 2016\97676), Galicia HCJ of 8 October 2014 (AS 2014\2738) or
Castile and León HCJ of 21 April 2010 (AS 2010\1854). The judgements from the
Murcia HCJ of 14 May 2012 (JUR 2012\229141) and the HCJ of the Community of
Valencia of 18 February 2016 (JUR 2016\141128), on the other hand, have declared
the nullity of the dismissal because they interpreted that the comments were
protected by the right to free speech.
Employers also use the public sphere of life shared by the worker on social
networks to justify a dismissal, particularly when the worker is in a situation of
temporary inability. Our jurisprudence has deemed that these were lawful dismissals
because there was a transgression of contractual good faith, and they have argued
that the workers’ right to privacy and their own image is not violated when the
images (for example) submitted as evidence were obtained from a public Facebook
account that did not require any kind of password [e.g. judgements from the
Andalusia HCJ of 29 October 2015 (AS 2016\655), Asturias HCJ of 14 June 2013
(JUR 2013\245751), Madrid HCJ of 28 May 2012 (JUR 2012\226324)].
380
F. M. Corvo López
the SDPA 0464/2013 reminds us that the jurisprudence in those cases admits that the
employer can control those media, provided that they have previously informed or
warned the worker about the conditions of use and control [e.g. Supreme Court
judgement of 26 September 2007, and CC judgement 170/2013 of 7 October].
The employer must respect the dignity of the worker when carrying out surveillance and control activities (Art. 20 SWR). According to the judgement from the
Supreme Court of 6 October 2011 (RJ 2011, 7699), the right to the worker’s dignity
is not violated when instructions have specifically been given or when the employer
has specifically stated that the computer may not be used for personal activities and
can only be used for strictly professional purposes. In those cases, company records
and surveillance of the computer without previous warning to the worker are
completely legitimate. However, if the employer did not give specific instructions
about the use of internet and the worker used the computer for private activities, it is
possible to interpret that there are certain “expectations of confidentiality” and,
therefore, the records and surveillance must respect the dignity of the worker.
Consequently, a disciplinary dismissal has been considered lawful when the use of
social networks during working hours has been interpreted as excessive [Judgement
from the HCJ of the Community of Valencia of 12 February 2013 (JUR 2013
\1923299)], and it has been deemed unlawful when the behaviour of the worker
was not of such serious nature and the employer had not issued a previous warning
about possible restrictions in this regard or about surveillance activities related to it
[Judgement of the Madrid HCJ of 28 April 2011 (AS 2011\1148)].
Comments posted by workers on social networks may also justify dismissal. This
was the case, for example, in the judgement from the Castilla-La Mancha HCJ of
8 April 2016 (JUR 2016\97676), Galicia HCJ of 8 October 2014 (AS 2014\2738) or
Castile and León HCJ of 21 April 2010 (AS 2010\1854). The judgements from the
Murcia HCJ of 14 May 2012 (JUR 2012\229141) and the HCJ of the Community of
Valencia of 18 February 2016 (JUR 2016\141128), on the other hand, have declared
the nullity of the dismissal because they interpreted that the comments were
protected by the right to free speech.
Employers also use the public sphere of life shared by the worker on social
networks to justify a dismissal, particularly when the worker is in a situation of
temporary inability. Our jurisprudence has deemed that these were lawful dismissals
because there was a transgression of contractual good faith, and they have argued
that the workers’ right to privacy and their own image is not violated when the
images (for example) submitted as evidence were obtained from a public Facebook
account that did not require any kind of password [e.g. judgements from the
Andalusia HCJ of 29 October 2015 (AS 2016\655), Asturias HCJ of 14 June 2013
(JUR 2013\245751), Madrid HCJ of 28 May 2012 (JUR 2012\226324)].
380
F. M. Corvo López