In today’s technology-driven society, where social media is part of our daily lives, it is common to find employees using this technology to spread negative comments, sometimes genuinely harmful criticism, against their companies, bosses or colleagues. The logical response of companies to the latter is sometimes the disciplinary dismissal of the employee who has made or disseminated or reacted publicly to these comments.
In the dismissal trial, it is argued that these are acts carried out outside the control of the employer (outside working hours and outside the company’s offices and systems) and that they are publications that form part of the employee’s intimate and private sphere.
However, for a long time now (even before the existence of social media), the courts have opted to consider that outside the strictly work environment, employees’ obligations towards their companies and colleagues also continue to apply, specifically the principle of good faith. In its recent ruling of 31 May 2022, the Supreme Court held that such actions, even if they take place outside working hours, may be sanctioned when they violate contractual good faith and cause harm to the company.
The second element that has been debated in court is that relating to workers’ freedom of expression and the right to honour, and how a sanction can undermine such constitutional rights.
The Constitutional Court has already established case law on this matter, notably in its ruling of 14 April 2008, which establishes that an employment contract can never deprive an employee of the rights recognised by the Constitution as a citizen, including the right to freely express thoughts, ideas and opinions.
The nuance can be found in the case law of the Supreme Court, including the ruling of 20 May 2005, which clarifies that the worker’s freedom of expression cannot simply justify the use of expressions or epithets that are insulting, offensive or humiliating to the reputation of the company. On the contrary, this fundamental right of the worker must respect the fundamental rights of others, be exercised in accordance with the requirements of good faith and be tempered by the mutual constraints imposed by the employment relationship, which affects both the workers and the company. See in this regard the Judgment of the Supreme Court of 12 February 2013.
In conclusion, in the face of this conflict, the courts will weigh up the magnitude and content of the publications made and the damage this has caused to the company, in relation to the constitutional rights to freedom of expression and to honour, privacy and one’s own image. The result of this weighing up will determine whether the action is admissible or inadmissible.
For all these reasons, the Labour Law Department of BELZUZ ABOGADOS, S.L.P., as lawyers specialising in labour law, calls on companies to seek legal advice before imposing dismissal or sanctions in such cases. At Belzuz Abogados, S.L.P., with extensive experience in providing comprehensive advice to companies on labour matters, we are aware of the added value of this advice and how it can determine the validity or invalidity of the sanction.