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There is no doubt that professional engagement with a company through an employment contract does not mean that workers waive their fundamental rights and freedoms within or outside the professional environment. However, at the same time, there are certain workers’ behaviors in their personal life that can have an impact on professional life. This fuzzy line can sometimes cause situations that are tricky to manage.

In a post in March we tackled the possibility of company interference in employee leisure activities outside the work environment. Now, the judgment of the Supreme Court of September 21, 2017, provides a new approach to this issue, in the context of a dismissal on disciplinary grounds for behavior outside the workplace and outside working hours.

The case ruled on is that of a supermarket chain cashier and shelf stocker, with reduced working hours for legal guardianship of a child, who, outside her working hours and in another supermarket owned by her employer that was not her place of employment, was discovered stealing company’s products.

The company proceeded to dismiss her on disciplinary grounds, but both the Labor Court and the Madrid High Court of Justice ruled that dismissal unfair, considering that the transgression was outside the work day and the workplace and occurred in her capacity as a customer and not an employee. Since the worker was enjoying reduced working hours, the dismissal was annulled, although there had not been a violation of fundamental rights.

The Supreme Court took a radically different view, considering the dismissal to be fair, validating—the vital point of this ruling—the company’s ability to implement disciplinary measures in response to the employee’s actions taking place outside working hours and the workplace.

The relevance of this judgment lies not only in the admission of the company’s ability to sanction for actions carried out outside the strictly professional environment, without the existence of contradiction between two judgments in which the principal plea is the classification of the disciplinary dismissal, although they are not employees of the same entity dismissed by an identical letter of dismissal.

In this case, the Court understands that it is not about assessing the seriousness of a certain conduct, but whether the company can use its sanctioning powers; thus, it unifies doctrine. Therefore, the legal discussion focuses on defining the circumstances in which behavior outside professional activity can have repercussions in the labor area. In this regard, the Court recognizes the existence of a private sphere of the employee’s personal life that is separate from the business, and in which the existence of an employment contract does not a priori restrict free action.

However, it stresses that this does not mean that the worker has “free reign to act in a way that harms the company and that, if occurring during working hours, would be sanctioned.” The analogy drawn by the Court between these situations and the capacity to control and sanction in the event of breaches occurring during periods of leave from work is interesting.

In application to the case at hand, the Court finds that the worker acted deliberately and intentionally to the detriment of the company, with a conduct that was unlawful and clearly contrary to the law. It does not even rule out that the worker could have used information that as an employee she had on the company and its common security practices to commit the unlawful act. Therefore, it declared that the company was entitled to sanction, and that the breach committed provides grounds for dismissal, thus overturning and annulling the appealed judgment, and declaring the dismissal to be fair.

The most relevant part of the judgment are the criteria used by the Supreme Court to determine whether the company had the ability to sanction actions performed outside the workplace and working hours, which are (i) the link between the action and the work activity, and (ii) the existence of harm to the company, not strictly in the economic sense.

The judgment has a dissenting vote, although it provides guidelines for companies to (albeit with a certain degree of uncertainty) ascertain which actions their workers commit outside the strictly employment area can be subject to disciplinary measures.

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