Published on 26 August 2024
FIFTH SECTION
Applications nos. 473/24 and 485/24
Francisco Javier RODRÍGUEZ QUINTERO against Spain and
Antonio MARTINEZ MARTIN against Spain
lodged on 22 December 2023 and 28 December 2023 respectively
communicated on 3 July 2024
SUBJECT MATTER OF THE CASES
The applications concern the applicants’ dismissals on disciplinary grounds based on social media exchanges used as evidence in other proceedings brought by a third employee against their company.
The applicants used to work as explosives transport security guards. Due to the sensitive nature of the activity performed, the applicants signed a confidentiality agreement with the company, under which they undertook not to disclose any non-public information they were aware of during their duties, including issues regarding transport schedules, locations, security codes and other details.
On 28 December 2020 the company sent the applicants letters informing them of their disciplinary dismissal as of the day after reception of the letter. An identical letter was sent to another employee. The dismissal was based on different electronic communications that had taken place between the applicants and the other employee from March until September 2020. These communications, some of which were about working hours, periods of rest and inactivity of the company, or blasting sites, were deemed to be in violation of their confidentiality agreement. The company became aware of these exchanges because their content was incorporated into other legal proceedings brought against the company by the other employee.
After their dismissals, each of the applicants lodged a claim against the company seeking the nullity of the dismissals (arguing that the measure had infringed their rights to freedom of expression, to private life, and to join trade unions) or, subsidiarily, that it should be declared unlawful. Although the competent first instance courts partially upheld their claims, the Andalusia High Court of Justice dismissed them, upholding the company’s appeals, stating that the company’s conduct did not infringe any fundamental right of the applicants, and declaring that the dismissals were lawful. The applicants appealed on cassation for unification of doctrine to the Supreme Court, which declared the appeals inadmissible. The applicants lodged an amparo appeal, which the Constitutional Court declared inadmissible due to its lack of constitutional relevance.
The applicants complain mainly under Articles 6, 8 and 10 of the Convention that the national courts’ judgments upholding the company’s decision to use those social media exchanges from other judicial proceedings as the basis for their dismissals amounted to violations of their rights to a fair trial, to respect for private life and freedom of expression.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicants’ right to a fair trial in view of the use against them of evidence obtained from other labour proceedings (see López Ribalda and Others, cited above, §§ 149-152 with further references)?
2. Did the applicants’ dismissal and/or the use of private electronic communication as its basis amount to a violation of the applicants’ right to respect for their private life, contrary to Article 8 of the Convention?
3. Have the authorities fulfilled their positive obligations under Article 8 in order to ensure the protection of the applicants’ right to private life and correspondence (see Bărbulescu v. Romania [GC], no. 61496/08, §§ 109-121, 5 September 2017)?
4. Has there been an interference with the applicants’ freedom to express themselves in private correspondence through WhatsApp? If so, has there been a violation of the applicants’ right to freedom of expression, contrary to Article 10 of the Convention?