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 has 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 in the company facilities dancing, singing or celebrating that it was Friday and it was over. the working day. The judges reason that, in this case, “not even remotely” do the three videos imply that the woman was not doing her job. Those three videos, the court ruled, were “a mere dance” and not a very serious offense that justified a dismissal.
The case that the courts have studied 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 manager, through his profile, saw that in total he had recorded three videos at the company facilities.
Videos in which, according to the company, the woman sang and danced in the building, sometimes riding an electric pallet truck, wearing the uniform and using songs such as a version of the Peruvian cumbia ‘Cariñito’ or a song by the Mexican Gloria Trevi. In one of those videos, the employee celebrated 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 decided that the recording of these videos was sufficient reason to sign her disciplinary and definitive dismissal. Throughout the judicial process, he defended the measure, alleging that the company’s facilities could be identified in the videos, that he also used machinery and did everything during his work day. A social court in the capital was the first to agree with the worker and declare her dismissal unfair, giving the company the choice between reinstatement or paying compensation of more than 23,000 euros.
The Superior Court of Justice of the capital, in a ruling to which elDiario.es has had access, has just confirmed the inadmissibility of the dismissal and the obligation of the company to reinstate or compensate the affected person. The judges understand that having recorded those three videos over several months “not remotely” is a justification for a sudden dismissal like the one signed by the company. They were, this sentence says, “three isolated behaviors” that do not denote a “lack of industriousness” in the woman when doing her job.
Everything was, say the social judges, “a mere dance” that also did not compromise the image of the company. “His behavior does not denote a lack of industriousness in his work as these are spontaneous demonstrations in which he does not compromise the image of the company.” The judges add that these TikTok recordings only demonstrate, in any case, “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 for these videos, says the Madrid court, should have been “minimal” and they understand that “in no way does the worker’s conduct violate the trust placed in her because it does not infringe the duties of loyalty, probity and trust implicit in the employment relationship.” This resolution can still be appealed in cassation before the Supreme Court but, for the moment, it leaves the company two options: reinstate the worker or pay more than 23,000 euros in compensation.
Dancing in heels after surgery
In recent years, the social jurisdiction has had to take charge of 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 her social networks and in other media, including the recording of a video clip, she had appeared dancing and jumping in high-heeled shoes, something incompatible with the sickness she was in after undergoing bunion surgery.
In that case, the dismissal was not for recording the videos, but for what they showed: that he could dance despite being on sick leave. But other territorial courts have had to assess the impact of recording TikTok videos at work. In the case of the worker at a poultry shop in Zamora, the result was the same: “It cannot be concluded that it implies serious damage to the image of the business, which is not even recognizable in the videos for those who are not part of it,” he said. the Superior Court of Castilla y León last summer to confirm the inadmissibility of his dismissal.
These are judicial arguments that depend on the job held by the dismissed person. In the case of a truck driver from Guadalajara, the courts upheld his dismissal because he published more than a dozen videos on TikTok recorded while driving the truck. That, said the Superior Court of Castilla-La Mancha, “without a doubt, in addition to implying negligent conduct, is likely to cause harm 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 precious for road safety, objects and the lives of other road users, in addition to his own, which means that the termination must be classified as appropriate.”
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