The Supreme Court of Madrid (Spain) has partially accepted the appeal of the company that dismissed a worker at her expense for unfair profits. It ruled that the use of WhatsApp conversations to prove the errors did not violate the woman’s right to privacy or the secrecy of communications. It found that although the company’s actions did not violate the plaintiff’s fundamental rights, the evidence against her was insufficient to prove the profit as it was obtained illegally.
The case concerns an employee of a transport company who was fired after it was revealed that she had received commissions from customers without her employer’s knowledge. He discovered the maneuvers when checking the WhatsApp conversations that the woman exchanged on the cell phone she gave her. assigned to meet work requirements.
For this reason, the woman sued her employer and requested that the dismissal be annulled because it was based on illegal evidence that was illegally reported (WhatsApp communication). Judge a quo accepted the request with the assessment that although the conversations took place in the workplace, they were still private, which constituted a violation of the Personal Data Protection Act. It ruled that the dismissal was void and a payment of 10,000 euros was made to the employee. for compensation. The company filed a petition to appeal the ruling.
In its background analysis, the court states that “(…) within the scope of the self-organization, instruction and control powers to which every entrepreneur is entitled” there is no doubt about the organization and regulation of the use of computer media is permissible. of the employee’s company property and the company’s authority to monitor and control compliance with the obligations associated with the use of the medium in question, always in full respect of fundamental rights.”
In the specific case, it points out that “(…) it must be agreed with the plaintiff that the control carried out by the company relates to the work equipment made available to the plaintiff and to the communications carried out by the plaintiff with the clients.” Company. and although there is no mandatory notification to the employee of the specific rules of use, nor is there an express total or partial ban on the private use of the above-mentioned work tools, especially with regard to WhatsApp, and the email conversations are also about, that in these specific cases and their inclusion in the right to privacy.”
It states that “(…) the classification of non-dismissal is not applicable since it has not been proven that the dismissal decision taken by the defendant company was, in itself, intended to violate the fundamental rights or public freedoms of the employee, nor that the The employer’s motive in agreeing to the dismissal was due to a reason that violated these fundamental rights, which, according to the law, would entail the annulment of the dismissal.
The court concludes that “(…) the difference is that when the employer sought to verify the conduct of its employee and obtain evidence of her non-compliance in order to justify dismissal, such evidence was unlawful has acquired.” Violation of fundamental rights. In this way, dismissal for violation of fundamental rights cannot be confused with violation of fundamental rights in order to obtain evidence of part of the facts on which the employer relied when imposing such a sanction.
On this basis, the court partially allowed the appeal and declared the dismissal inadmissible because the reason for the dismissal was not sufficiently established. The company must choose between reinstating the complainant or paying compensation of EUR 1,506.84 in her favor. Without prejudice to the foregoing, he refused to annul the termination.
See Judgment of the Supreme Court of Madrid 405.2023.