The Tribunal Superior de Justicia, Sala de lo Social, Logroño, the 13.0.5.2021, n.º de rec. 55/2021 sentence (In English, The Social Section of the Spanish Superior Court of Justice, Logroño), brings us a curious case of workers’ personality rights. The crux of the matter here is to know, for sure, whether there is a violation of the employee’s right to honor when he is expelled from a WhatsApp group due to dismissal.
In the Portuguese legal system, the labor protection of honor is carried out at the level of personality rights, not only for the moral integrity of the worker (article 15 of the PLC), but also through the general and subsidiary protection of personality rights, as well as for the offense of the credibility and good name, as stated in the Civil Code (articles 70, no.1, and 484, respectively). The criminal protection guardianship of honor, in turn, is set out in articles 180 (defamation) and 181 (injury).
In Portugal, in a now old decision, Ac. of the TRL of 21.03.1990 (Rodrigues da Silva), proc. 0060284 (In English – Decision of the Superior Court of Lisbon 21.03.1990, proc. 00602), it was considered that “[t]he concept of offense to the honor and dignity of the worker is not included in the fact that the employer fixed the decision of the disciplinary process in an employee-public window of an interior corridor of the company due to the need to clarify certain facts”, because “(…) such internal publication of the decision of a disciplinary proceeding is justified when there is interest from other workers who make it convenient to clarify what happened”.
The importance of this case can analysed on two different levels: (i) for the purposes of just cause, on one hand; and (ii) to repair the damage caused and, therefore, for the civil liability of the employer.
The Spanish Court considered that the expulsion of that worker from a WhatsApp group, due to dismissal, does not cause damage to the worker’s honor, since such achievement did not acquire projection or did not transcend to third parties. Likewise, this would not be relevant for the purposes of the circumstances that determine the termination of the contract.
The protection of personality in the work context is a fruitful topic, given that the employment contract is commonly characterized as being of particular sensibility in violating these rights. It will, of course, be a topic to follow in the near future.
Tiago Sequeira Mousinho @ DCM | Littler
