The widespread use of new communication tools such as instant messaging applications has legal and labor implications that should be taken into account. We review some rulings in this regard.
Devices such as cell phones, tablets and computers are part of workers’ personal and professional lives. Furthermore, the increase in working from home as a result of the global pandemic has extended the use of new technologies, making it more difficult to distinguish between work and personal time.
Among the communications tools whose use has become widespread in the workplace, instant messaging applications are now a social reality. The fact that they allow instant communication, create groups, send both text messages and audio, images and videos, as well as knowing whether the message has been seen by the recipient, raises new issues that are being dealt with by the labor courts.
In relation to the right to digital disconnection and the sending of messages through the WhatsApp application, in a judgment given on November 23, 2022, the High Court of Justice of Galicia ruled in relation to an alleged breach of a worker’s right to digital disconnection as a result of communications outside working hours in the WhatsApp group comprised of company employees. The court concluded that a violation of the right to digital disconnection was not accredited, since it was established that the worker could be disconnected outside his working hours, without any penalty, warning, reminder or conduct resulting in him having to immediately attend such communications.
Comments made on a company’s WhatsApp group have been assessed in judgments such as that of the High Court of Justice of Valencia of January 25, 2022, which validated a disciplinary dismissal. The court considered that the offensive content posted in the employee’s profile was observed by other company employees, causing disruption in the workplace and working environment.
Also in relation to WhatsApp groups at work, the judgment given by the High Court of Justice of Catalonia of October 7, 2022 ruled out the existence of a situation of harassment or mobbing by stating that one of the indications to be taken into consideration was that the plaintiff employee was part of a general corporate WhatsApp group, in which information was sent regarding congresses, events and different notifications and was updated at all times.
In short, the widespread use of instant communication applications requires special attention from a labor relations perspective and it is advisable to analyze their proper use, especially in order to ensure compliance with corporate obligations such as those resulting from the right to digital disconnection.
Right to digital disconnection
The permanent connectivity in which we are immersed has an impact on labor relations, giving rise to phenomena such as always on, in reference to jobs in which the worker is permanently available.
In this context, legislators have established the right to digital disconnection, initially in Organic Law 3/2018, of December 5, 2018 on the Protection of Personal Data and guarantee of digital rights of December 5, 2018 and, subsequently, when regulating tele-working in Law 20/2021, of July 9, 2021.
We referred to this issue in our Labor and Employment Blog called Disconnection from work is becoming a reality, in which we looked at this new regulation, which established the obligation of companies to have an internal policy defining the forms of exercising the right to digital disconnection and the training and awareness-raising on the reasonable use of technological tools. The regulation of tele-working also highlighted the duty of companies to guarantee the right to digital disconnection, stating that it entails a limitation of the use of technological tools for corporate and work notifications during rest periods.
Very few countries in the EU currently have their own regulations on digital disconnection, which has led the European Parliament to issue a Resolution on January 21, 2021 with a series of recommendations for the Commission, aimed at the drafting of a future Community Directive on the right to digital disconnection. As stated by the European Parliament, digital tools used for work purposes can be an asset for companies and workers, allowing greater freedom and flexibility to better organize working hours and thus create a better work-life balance. In this context, the importance of developing a clear framework that promotes flexibility and the protection of workers’ rights is evident.