“It is not true that the number of arrivals is enormous [en 2022, fueron interceptados 46.000 inmigrantes en el canal de la Mancha]. We host far fewer refugees than most European countries. This [el nuevo proyecto de ley del Gobierno de Reino Unido] it is simply an incredibly cruel political measure that targets the most vulnerable people, in language not much different from that used in Germany in the 1930s. And am I the one who has gone out of tune? This message on Twitter. in which she replied to another user, and another tweet, in which she described the video in which the Minister of the Interior, Suella Braverman, sold the advantages of the norm as “appalling”, led to the BBCpressured by the conservative government, to remove former soccer player Gary Lineker from the program Match of the daywhich he has been presenting for years in the public body.
A week later, and after a wave of solidarity from colleagues and the public, Lineker He emerged victorious from his pulse and has rejoined the public channelwhich is going to review its editorial rules on the use of social networks by employees, which leaves collaborators in a gray area, in the case of the former soccer player.
Leaving aside that the BBC is a public channel that is expected to be impartial in its reporting, can a company penalize or fire an employee for what they say or do on social media? The answer, like many in life, has nuances. “In principle, the activity in social networks derived from your status as a private person, and regardless of your status as a worker, is outside the scope of action of the company, and therefore enter your freedom to express ideas and disseminate them on social networks, unless a direct connection can be established with the work or it could affect the reputation of the company”, explains Ana Godino, partner at Sagardoy Abogados.
For his part, Ismael Viejo, counsel from the labor department of Garrigues, states that “Although freedom of expression is a constitutional right, it is not absoluteso that, as a general rule, disseminating opinions from a personal profile on social networks may lead to the imposition of disciplinary measures if they have labor significance, understanding this as those conducts that contain information, data, opinions and/or direct or indirect criticism of to the company, colleagues, clients, etc., as well as any publication from which economic or reputational damage to the company may be derived”.
Viejo supports his words by citing article 54.2 c) and d) of the Workers’ Statute, which regulates as punishable acts “verbal or physical offenses against the employer or the people who work in the company or the family members who live with them”, and ” the transgression of contractual good faith, as well as the breach of trust in the performance of the work”, respectively.
Both lawyers agree that a general answer cannot be given and that it is necessary to take into account “the casuistry in an issue where fundamental rights such as freedom of expression and opinion are involved, which do not disappear by signing the employment contract”, as Godino points out.
Over the past few years, judges have ruled rulings that agreed with the dismissed employee, and others in which the company won. Viejo explains that it is necessary to take into account the manifestations, the context in which they occur, the medium used, the diffusion obtained or the position of the employee, for example. These circumstances are what will determine whether the dismissal is justified “balancing the right to freedom of expression and privacy against the worker’s labor obligations, with multiple and diverse pronouncements issued on this matter,” he adds.
Godino puts on the table that if the publication is made from work, the employee can be penalized not for the content, but for the fact that use the time “for matters unrelated to the employment relationship and with the means made available by the company”.
The danger to the brand
Aware of the danger that being involved in a viral situation can pose for a company’s image, there are more and more companies that implement codes of conduct, as José Castellanos, managing director of PageGroup Madrid, points out. “In them, it can be indicated that employees be careful with their communications, be they as clients, suppliers, collaborators, shareholders or the media. And be these through any means, from email to telephone, including social networks, and must be respectful, comply with the law and not say anything insulting or defamatory. And if, in addition, they are on behalf of the company, they must always be in line with the tone of the company”.
In this regard, the only recommendation of Marta Iraola, professor at Deusto Business School and founder of DonosTIK, to companies, which in her opinion cannot tell workers what they can or cannot post on their social profiles, “is that train and inform your team of the repercussions of your activity on those profiles, which they consider personal and private, on their organization’s brand reputation. It is a reality today that some figures can even influence the daily price of your company”. Iraola defends that “the only way out” is for team members to be aware “that this barrier in the brain that separates the personal and professional world, in the digital world, and depending on the position, does not exist”.
In the same vein as Iraola is Quico Vidal, founder of the consultancy Nadie, when he states that “it is very important that every manager knows that any small detail of its management is something that is part of the brand”. Once the company is involved, as has happened to the BBC, in a controversy, Vidal advises “acting with transparency” and “responding with the greatest sensitivity to what has come to light, showing that you have the sensitivity to understand what is happening.” He has made a mistake and has to correct something”. Indeed, the BBC has been praised for the transparency with which it has treated Lineker’s sanction, and its subsequent consequences, in its programs, where criticism of the chain was collected for the decision to temporarily remove him from the space he presented.
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