The advance of teleworking and the large-scale use of WhatsApp leads to the communication of layoffs through channels such as e-mail or a simple message for convenience, which is leading to greater litigation due to breaching certain minimums in form and content.
To see why you have to go to the Workers' Statute. It specifies that "the dismissal must be notified in writing to the worker." “In order for it to be qualified as appropriate, it must be communicated to the worker in writing by means of a letter in which the facts that motivate it must be expressed, in order not to generate defenselessness for the employee. It must be reliably notified ”, reviews Amparo Iglesias, a lawyer for Legálitas. María Higinia Ruiz, coordinator of the legal area of the UGT studies service, recalls that the communication must comply with a series of formalities. Be in writing -by letter, burofax or notary-, specifying reasons, facts, date and with the corresponding compensation if it is objective. Law in hand, a priori neither watsaps nor emails comply as a channel.
The underlying problem is certifying authenticity. Sergio Maldonado, lawyer for Col·lectiu Ronda, pays attention to the content. “A watsap is not a document itself. If we use a screenshot as proof of the dismissal, we don't know for sure if there has been an alteration of the content”. In the case of an email "it can be forwarded by modifying the quoted text". That is, it can be easily retouched and makes it difficult to validate its authenticity in a dispute. To protect itself, the company could communicate a dismissal online with certification and fingerprint methods. "You eliminate the problem of a possible change of content by the other party," he explains. For example, an e-mail "with certification and acknowledgment of receipt would be valid," says Maldonado. Otherwise, "we cannot know who has been in charge of the broadcast, nor its true content." Who guarantees that after an email or phone you really find who you say you are?
“The Supreme Court has ruled on the e-mails. He has said that they are documentary in nature, as long as the person concerned has authenticated it. Some have wanted to equate it to a watsap, but on that it has not ruled, and it is not a mechanism that 100% proves the identity of the person who is sending it, ”explains Ruiz.
Since the message can enter our mobile phone or inbox without us being able to do anything, if it is not certified, the recommendation is to go to work as if it had not existed, because if the employer does not leave, he may end up arguing that it is a voluntary departure.
Another problem with these channels is the reception. For example, if you are fired verbally without notice and then receive an email with the formal communication, it is possible that he will not even open it. "The worker has no obligation to continue opening post offices after being fired," says Maldonado. If there has been 15 days notice and he continues working and using that email, if he does not open it, it would be more treacherous, "with the will of not wanting to look". In the end, the dismissal letter in hand or the burofax stand as the most effective alternative. “That the employer forgets to send messages to dismiss, is not solved with a watsap. It does not meet the conditions ”, they warn from UGT.
Legal consultations grow due to the advancement of digitization. "We find many clients who have been fired verbally, by WhatsApp or by e-mail," explains Iglesias, from Legálitas. The recommendation for the worker is to challenge the dismissal within 20 business days so that it is classified as unfair due to formal defects. This opens the door to reinstatement by collecting the salary not received on the days not worked or with compensation of 45 days per year worked if the contract is prior to February 2012 or 33 days if it is later. In the meantime, continue going to work "until you receive reliable communication", they point out from the Col·lectiu Ronda.
There are also doubts among businessmen. "We always advise complying with all the guarantees at our disposal to follow the law and communicate the dismissal letter in a reliable way, to avoid the qualification of inadmissibility," says Iglesias. “Who has to worry about the statement and the form is the employer. Without a fingerprint, he does not act appropriately, ”explains Maldonado.
Where there seems to be less problem when communicating a termination via WhatsApp is during the trial period, with several rulings from higher courts (Galicia, Madrid, Cantabria) that validate it, since the Workers' Statute does not require formality or obligation to specify causes, remember from UGT.
