Writing a message attacking the boss or colleagues in a conversation, a WhatsApp group or the states can lead to dismissal, according to several higher court rulings collected by UGT. "If you put barbaric things or photos, things that leave the record, obvious examples, it can end in dismissal," warns María Higinia Ruiz, coordinator of the legal area of the union's research service.
Going to the message platform to vent against a superior or colleague after a hard day can have greater consequences than what can be expected when writing, serving as justification for a job break.
UGT has compiled decisions of this style in a document, ranging from insults in groups to disqualifications in the states. It also applies to chats between two people if the other party transmits it to the affected party and conditions are met. Among the sentences that have been handed down, it can be mentioned how the TSJ of Andalusia (3430/2017) has validated a disciplinary dismissal for degrading insults and hurtful comments to a boss (he continually called her a "daughter of a bitch") and her colleagues (" machupichus") in a group.
"Publishing offenses in the states, which is something public, seems to be more clear that it can lead to dismissal. Just like harassing messages," says Ruiz. For example, a worker who in a group and his state ended up in court accused his boss and his lawyer of being corrupt and defrauding the Treasury (STSJ Valencia 216/2022). Another worker ended up with a disciplinary dismissal for sending through his WhatsApp status "messages with allusions to homelessness, alcoholism or drug addiction" and calling two bosses and their relatives "liars" (TSJ Madrid 382/2022).
There are direct messages that can lead to dismissal, such as harassing a colleague even with WhatsApp messages at dawn, which in Catalonia (STSJ Catalunya 8236/2018) has been accepted as a cause for disciplinary dismissal.
As has been seen, what is done in the groups also has to be taken care of. The TSJ of Catalonia considered that sharing photos of a child's genitals accompanied by sexual content jokes in a WhatsApp group of daycare workers are sufficient cause for dismissal (5098/2014). Also create one with the relatives of users of a residence to accuse the management of "reducing costs to line their pockets" (STSJ de Catalunya 3480/2020).
Are the watsaps themselves worth as proof? Some courts accept it, others ask for more... "As a means of evidence, it has its difficulties because impersonations can occur. There is no unanimity, the judges assess the evidence. As circumstantial evidence there it is and it will be taken into account, but for that there are no doubts, extra conditions are required to give credibility," argues Ruiz.
In this sense, a judgment of the TSJ of Galicia (556/2017), one of the first on the matter, established that in order for them to be accepted as evidence, a series of conditions must be met, such as providing a paper copy of a screenshot, a transcript of the conversation and a verification that it corresponds to the telephone and number by a lawyer from the Administration of Justice or a notary. It is also important that the other party does not challenge the conversation, if it expressly acknowledges the conversation and its content, if it is compared with the other terminal or if an expert test is carried out.
On whether in this whole process there is a violation of rights, such as privacy, "it is decisive how the information has been obtained." It must be taken into account that the telephones provided by the company that are prohibited for personal use can be inspected without authorization by the worker, it is recalled from UGT. In the case of personal devices, "the proportionality trial must be carried out", with respect for various rights -secrecy of communications, privacy, freedom of expression...-.
In any case, if it was a private conversation and "if the other transmits it (to the person affected) the right to privacy is broken. You can do with the conversation what you consider," says Ruiz. That is, to report it to whomever you were talking to. The same in the groups: "There is no violation of rights when it is one of those who intervenes in a group who sends the subject to another". This is reflected, for example, in a sentence of the Social Chamber of the TSJ of Galicia (2432/2014).
Ruiz calls for caution because "you cannot generalize, the volume of sentences is still being generated." In the end, the great advice is "do not put anything, it can have consequences and cause serious problems". This also applies to companies, such as in cases of notification of layoffs via WhatsApp or when setting the schedule and tasks of a person who is autonomous on paper.
To avoid problems, one solution is to set phone usage to convention. "It is ideal and logical," says Ruiz. From saying that it cannot be used in the work environment to establishing its use with conditions and limitations, which allow, for example, respect for the right to disconnect. Also in the use of personal terminals. "They cannot force us to use the personal telephone for work issues. It belongs to the private sphere, with data protection. If I freely consent to its use for this, I have to do it expressly," he points out.
