Social media can cost you your job

Actress Gina Carano, from the series 'The Mandalorian' has been fired for her political comments on Instagram.

A week ago, the Lucasfilm production company announced the cessation of actress Gina Carano, one of the main characters of the series

The Mandalorian

, after she shared posts on Instagram comparing the treatment of Republican politicians in the United States with that of Jews in Nazi Germany.

The company called these comments "abhorrent and unacceptable," adding that they denigrated people for their cultural and religious identity.

For her part, the interpreter described the decision as totalitarian and claimed to be the victim of a "witch hunt."

Beyond the controversy surrounding the claims, this case brings to the table the debate of the extent to which employees can be sanctioned for an opinion expressed on social networks.

While in the United States the dismissal is free and it is not necessary to allude to a specific cause, Spanish law requires that, for the termination to be valid, it must be supported by a justified reason “necessarily linked to the workplace”, says José Luis Peñín , associate of Abdón Pedrajas Littler.

In other words, if there is no link with professional obligations, a worker cannot be punished for what he says in his networks, "no matter how serious the claims," ​​he asserts.

Álvaro San Martín, a labor lawyer at the Casadeley Law Firm, agrees with this opinion and adds that it is a license that is part of the staff's right to privacy.

"Once the employee leaves the office door, everything he does belongs to his private sphere and is alien to the employer," he stresses.

However, San Martín clarifies that this is not an absolute right.

Thus, opinions can be sanctioned if two main conditions are met.

In the first place, that they cause damage to the image or reputation of the organization.

And second, that the author can be linked to the company.

For example, if the employee identifies himself as such in his profile.

In this case, the dismissal would fit into article 54 of the Workers' Statute, which allows expulsion for violation of good contractual faith.

Criticisms of the company

This was the case in 2018 when a court in Palma de Mallorca endorsed the dismissal of a Primark employee who published images on Facebook in which he mocked situations from the Syrian war.

One of them showed a group of children lying on the ground, apparently killed by gases and chemical weapons, under the title "Mannequin Challenge in Syria."

In his profile, the man identified himself as a store worker.

The comments were posted on Internet forums and led to a boycott call.

The court upheld the termination on the grounds that, with his conduct, the employee "breached his duties of fidelity and loyalty implicit in any employment relationship."

What happens if the opinions expressed in social networks are critical to the company?

As Luis Enrique de la Villa, Labor partner at Hogan Lovells, explains, this scenario is not only more frequent, but also more complex because it faces two fundamental rights.

On the one hand, the honor of the entity and, on the other, the freedom of expression of the staff.

However, the law does not clearly define the limits between the two legal figures, so it is the judges who are in charge of defining in case of conflict which comments are protected and which are not.

A weighting of rights that, according to De la Villa, is usually resolved in favor of the employees.

"For years, the courts have protected criticism of the company under the umbrella of freedom of expression," he highlights.

Proof of this is a recent ruling by the Superior Court of Justice (TSJ) of Catalonia in which it annulled the dismissal of a basketball player who published a message on his Instagram account in which he accused the club's medical service of his health problems. performance as he was encouraged to play again before he recovered from injury.

The magistrates rejected that the player's expressions were insulting or offensive, as the company defended, and considered that his freedom of expression had been violated.

For this reason, they forced the team to reinstate him and set a compensation of 25,000 euros.

But not all criticism is worth it.

The lawyer clarifies that our legal system does not protect those comments that violate the dignity or honor of third parties.

For example, if it is insults or insults.

In this sense, the Supreme Court of Catalonia failed when it endorsed the dismissal of an employee of a residence who accused her colleagues of mistreating the elderly and the organization of covering it up.

Some statements that, for the court, "exceeded the limits of freedom of expression" as they were false accusations that damaged the honor of the workers.

In order to avoid possible conflicts in this regard, De la Villa recommends that companies adopt internal policies on the use of social networks, "in the same way that the use of mail or the telephone is regulated on a personal level".

This document, he adds, must specify to the staff if they can be identified as workers, what kind of information can never be shared (for example, confidential information) and what the possible repercussions would be in the event of non-compliance.

Moment of vulnerability

Another factor that judges take into account when analyzing this type of lawsuit is the context in which criticism is made by employees.

An example of this was a 2017 judgment of the Supreme Court of Extremadura that declared inadmissible the dismissal of a worker who insulted his company and colleagues on his Facebook profile for not granting him a day of leave for the death of a relative.

The Chamber concluded that the man did not publish those comments with the intention of damaging the honor or the image of the entity, but that he did so in a moment of vulnerability and "with the intention of venting."