Recording TikTok videos in the workplace does not imply that the company can sign the disciplinary dismissal of the worker. The Superior Court of Madrid declared inadmissible the dismissal of a woman who was fired after her superiors discovered that she had recorded up to three videos for this social network on the company’s premises dancing, singing or celebrating that it was Friday and it was over. the working day. The judges believe that, in this case, “even remotely” the three videos do not imply that the woman was not doing her job. These three videos, the court ruled, were “a simple dance” and did not constitute a very serious offense warranting dismissal.
The case being investigated by the courts is that of a woman who had been working as a cleaner in a reusable materials company in Madrid for more than a decade when she was fired. His superiors verified that he had recorded a video for the TikTok application at work and his direct superior, thanks to his profile, saw that in total he had recorded three videos on the company’s premises.
Videos in which, according to the company, the woman sang and danced in the building, sometimes on an electric pallet jack, wearing the uniform and using songs such as a version of the Peruvian cumbia “Cariñito” or a song by Mexican Gloria Trevi. . In one of these videos, the employee was celebrating that it was Friday and the work day was over: “The time has come to say, I’m going home after Friday,” one of the videos celebrated.
The company had already sanctioned the worker once in the past and had decided that the recording of these videos was sufficient reason to sign her disciplinary and permanent dismissal. Throughout the legal proceedings, he defended this measure, saying that the company’s facilities could be identified in the videos, that he also operated machines and that he did everything during his workday. The capital’s social court was the first to agree with the worker and declare her unfair dismissal, leaving the company the choice between her reinstatement or the payment of compensation of more than 23,000 euros.
The Superior Court of Justice of the capital, in a judgment to which elDiario.es had access, has just confirmed the inadmissibility of the dismissal and the obligation of the company to reinstate or compensate the person concerned. The judges understand that the fact of having recorded these three videos for several months “without distance” justifies a brutal dismissal like the one signed by the company. It was, this sentence says, “three isolated behaviors” which do not denote a “lack of diligence” on the part of the woman in carrying out her work.
Everything was, say the social judges, “a simple dance” which did not compromise the image of the company either. “His behavior does not indicate a lack of diligence in his work, because they are spontaneous manifestations in which he does not compromise the image of the company.” The judges add that these TikTok recordings in any case only demonstrate “the gesticulation of soundtracks with innocuous content adjusted to social normality, especially when one of them indicates that he is going home because it is Friday “.
The company’s retaliation against these videos, says the Madrid court, should have been “minimal” and they understand that “the behavior of the worker does not in any way violate the trust placed in her because it does not violate the duties of loyalty, probity and implicit trust”. in the employment relationship. » This resolution can still be the subject of an appeal to the Supreme Court but, for the moment, it leaves the company with two options: reinstate the worker or pay more than 23,000 euros in compensation.
Dancing in heels after surgery
In recent years, the social court has had to deal with labor disputes in which a video posted by a worker on their social networks can become the main evidence used by a company to sign a dismissal. Last July, it was the Superior Court of Justice of the Canary Islands that ratified the disciplinary dismissal of a worker from a production company on the islands because both on its social networks and on other media, including the While recording a music video, she appeared dancing and jumping in high-heeled shoes, something incompatible with the illness she was in after undergoing bunion surgery.
In this case, the dismissal was not due to the recording of the videos, but to what they showed: that he could dance despite being off work. But other territorial courts have had to assess the impact of recording TikTok videos on work. In the case of the employee of a poultry store in Zamora, the result was the same: “We cannot conclude that this involves serious damage to the image of the company, which is not even recognizable in the videos for those who are not part of them. of this,” he declared last summer to the Superior Court of Castilla y León to confirm the inadmissibility of his dismissal.
These are legal arguments that depend on the job held by the dismissed person. In the case of a Guadalajara truck driver, the courts upheld his dismissal because he posted on TikTok more than a dozen videos recorded while he was driving the truck. This, said the Superior Court of Castile-La Mancha, “undoubtedly, in addition to implying negligent conduct, is likely to cause damage to the company.”
In the case of this transporter, recording these videos forced him to stop looking at the road for a few moments “which can be valuable for road safety, objects and the lives of other road users, in more than his own, which means that the termination must be classified as appropriate.
