Is it acceptable to insult your boss on social media?

Firstly, it should be noted that, according to the provisions of Article 54.2.c) of Royal Decree Legislative 2/2015, of 23 October, approving the consolidated text of the Workers' Statute (ET), verbal or physical offenses against the employer or persons working for the company or their relatives living with them are considered a serious and culpable infringement by the worker, and constitute grounds for disciplinary dismissal.

On the other hand, excessive browsing on social media during work hours could also constitute grounds for disciplinary dismissal for breaching contractual good faith and abusing the trust in the execution of the work performance, according to Article 54.2.d) of the ET, as it constitutes negligence in the tasks assigned by the company, with the consequent voluntary and continued decrease in work performance.

Furthermore, when the company has a policy on the use of technological resources that prohibits personal use of the internet and computer tools, and access to social media is done through company devices, the grounds for dismissal would be reinforced because this would endanger the company's cybersecurity by exposing its resources and digital network to unnecessary risks, as determined in judgement 858/2024 of the Social Chamber of the Superior Court of Justice of Cantabria dated 4 November 2024.

That said, certain contexts must be analysed in which labour case law has considered that, even if circumstances arise that could be understood as disrespectful to the employer or the company, the legal requirements for the disciplinary dismissal of the employee are not met.

Regarding acts that affect the good image of the company, resolution 198/2024 of the Social Chamber of the Superior Court of Justice of La Rioja, of 21 November 2024, considered that the publication by an employee of an inappropriate photograph (a woman in a wet and relatively tight shirt, in which her breasts are visible and she shows her legs) on the company's WhatsApp profile is not grounds for such a severe measure as disciplinary dismissal. The basis for this was that the company did not have a policy on the use of mobile phones, and there is no evidence that it caused any inconvenience to colleagues or damaged the company's image, as the visibility of the image did not go beyond the internal scope.

Regarding direct insults against the employer, resolution 57/2024 of the Social Chamber of the Superior Court of Justice of Madrid, dated 26 January 2024, ruled that calling a superior "idiot" on one occasion does not justify disciplinary dismissal, as, although the employee's response and the manner in which they addressed their superior were intemperate, disrespectful and offensive, they do not have the necessary seriousness and culpability to apply the most severe sanction provided for in labour legislation, thus requiring a restrictive interpretation, as other sanctions are possible.

The events took place at a meeting between the company and employees, which was delayed while waiting for the entire staff to arrive. At 3 p.m., the employee communicated that they were leaving because their work shift had ended, citing personal reasons. Their superior warned them that if they left, they could be sanctioned for insubordination, as they had already enjoyed a 15-minute break. The worker replied: "We'll see if you dare, idiot," and left, slamming the door.

Similarly, judgement 198/2024 of the Social Chamber of the Superior Court of Justice of the Balearic Islands, dated 13 April 2024, established that private conversations on WhatsApp among various employees insulting their boss ("filthy rat", "disgusting rat", "mobster", "bastard", "scoundrel", "disgusting brat", "bitter", "pig", "pathetic", "retarded" and "takes so many drugs that they forget things") cannot be used to justify their disciplinary dismissal, as it was understood that these were opinions and outbursts in a WhatsApp group where the participants expressed themselves freely, with the trust of being among colleagues, with no intention of making them public.

The events became known to the employer in violation of the fundamental right to the secrecy of communications established in Article 18 of the Spanish Constitution (CE), which could even constitute a crime of revelation and discovery of secrets under Article 197 of the Penal Code, as the employees had an expectation of privacy, having created the WhatsApp group to communicate among themselves after making a business demand (that 24 and 31 December be public holidays according to the collective agreement for driving schools), where they made comments that were not intended to be known to the employer.

Excessive browsing on social media during work hours could also be grounds for disciplinary dismissal.

It is also considered that the fundamental right to the protection of personal data would have been violated by disseminating, without their authorisation, the identity and phone numbers of the participants in the WhatsApp group without their authorisation, as Article 87 of Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the guarantee of digital rights, recognises the right of workers to the protection of their privacy in the use of digital devices made available to them by the employer, further underpinning the obligation of the employer to guarantee, and not violate, such a fundamental right when communications are made using their personal phones.

Apart from the work implications, from a civil law perspective, this type of insult could violate the right to honour protected by Article 18 of the Spanish Constitution and Organic Law 1/1982, of 5 May, on civil protection of the right to honour, personal and family privacy and one’s own image. In this sense, the ruling of the Court of First Instance No. 1 of Seville of 8 January 2024 convicted an employee for violating the honour of the Human Resources director by accusing him, without evidence, of harassment and discrimination in a certified letter addressed to the company, portraying him as a violent, insulting, threatening, and discriminatory person for reasons related to the employee's disability.

However, in the resolutions issued in the context of social jurisdiction, there is no evidence that harassment took place or that the events described in the certified letter occurred. It should be noted that the letter was sent to the company without a specific recipient and without following the established protocol, which led to the dissemination of an idea within the company that clearly discredited the claimant both professionally and personally.

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