It is obvious that labour relations are not a watertight compartment completely disconnected from the use of social media. Moreover, handling social media has become a tool used by many companies to gain visibility on an increasingly digitalised market.
Similarly, it is more and more common to see workers share information, photos, opinions and even videos on Instagram, Facebook or Twitter that have a certain connection with the scope of their work or even with the company they work for.
It is hence logical that disputes can arise between workers and employers, due to the public disclosure of content by both parties in the labour relationship, not only because of their incorrect use of IT media but also because of the content that either party could post on their social media and/or include in their personal or professional profiles.
Can companies use the content posted by their employees on social media as evidence?
According to case law, the answer to this question is YES.
Although there is still no specific regulation governing the use of social media in a labour field, there are more and more judgements that analyse cases in which, for example, disciplinary measures have been adopted due to the misuse of social media by workers or even, due to their using these media during working hours and in the workplace.
In principle, the workers’ private accounts are personal and therefore they are not included in the labour relationship; however there are more and more cases in which the courts accept the content posted on workers’ non-professional accounts as means of evidence.
The judgement of 29 September 2022 ruled by the High Court of Justice of Castilla y León recently upheld the dismissal of a supermarket employee who, in spite of having been on sick leave for more than 8 months due to lumbago, had uploaded several videos on Tik Tok where she could be seen dancing and with movements that, according to the High Court of Justice, were absolutely “incompatible with her illness”.
Rulings, such as the previous one, are becoming ever more frequent in a world that, as mentioned, is becoming more and more digitalised and where various types of situations can arise: There are court judgements that, due to the content posted on an Instagram profile, ruled a worker’s dismissal was fair when such worker had posted nude photos, claiming that they were for the company’s calendar or, the dismissal of an employee was ruled fair due to having posted images and comments on Facebook that harmed the company’s image.
Can the content posted on social media also be used as evidence in other cases that are not related to justifying penalties?
The judgement of 16 November 2022 ruled by the High Court of Justice of Madrid recently went even further than merely analysing the content posted on social media to justify adopting disciplinary decisions and, due to the content posted in the professional profile of LinkedIn by a worker, it could be proven that the non-competition clause signed by the employee with the company had been infringed.
In the aforementioned ruling, the High Court of Justice analysed the appeal lodged by the worker against the judgement ruled by the Labour Court that, partially admitting the claim filed by the company against the worker, ruled that the employee had to pay €5,000 to the company for his breach of a non-competition clause.
This was because, by submitting a screenshot of the employee’s LinkedIn profile as evidence, the company had proven that such employee had performed activities on the same market as his previous employer and, after his temporary contract had terminated with the plaintiff company, the employee directly competing because the new company that had recruited him had the same object as his previous company.
As mentioned above, the plaintiff had signed a non-competition clause with his employer by virtue of which he undertook “not to poach customers or projects that the company had begun, either on his own behalf or for other competing companies”, during the years after the termination of his labour relationship.
In this respect, after discovering that its former employee had breached the non-competition clause, the company realised from his LinkedIn profile that he was hired by his new company for “the automatic digitalisation of receipts and invoices by using artificial intelligence”, and this was the same object as that of his previous employer.
Finally, bearing in mind that, in spite of proving in this case that both companies were competitors and developed similar applications, it could not be proven that the employee had actually poached any customers or that he had acted in bad faith, the Court therefore decided to set the compensation payable to the company at €5,000 and not the amount of €10,000 as petitioned by the company.
In any case, the most significant feature of the aforementioned ruling is the importance of social media not only for adopting disciplinary measures but also for all other aspects involved in labour relations.
Being up to date and obtaining advice when drawing up protocols, guidelines and instructions about the use of social media can avoid a great deal of harm being caused to companies and to their workers.
For such purpose, RSM is at your entire disposal to clear up any doubts you may have related to social media, labour relations and the increasingly greater connection between them both.
Author: Yolanada Tejera, lawyer at RSM Spain