Spain: Court rules on the use of WhatsApp to Inform Employees of Work-Related Issues

Authors: Iván Suárez and Pablo Samsó Sánchez

The ruling of the High Court of Justice of Asturias of 22 June 2022, establishes that the use of WhatsApp to communicate certain aspects of the employment relationship does not always violate the right to digital disconnection and privacy of workers.

This ruling examines a case in which the workers of a trucking company call a massive strike. In view of the strike, the company had to organise itself and establish minimum services in order to be able to supply its customers.

Traditionally, companies have been using conventional methods to inform their workers that they had to cover the minimum services in case of strike, such as email, postal mail, or any other means that guarantee the reception and content of the communication.  All of this in order not to violate the worker’s intimacy, privacy and right to digital disconnection.

It is vital that companies respect workers’ rest and do not use intrusive methods to communicate with them.

Well, this new ruling considers that the communication by WhatsApp to the worker about the need to cover the minimum services does not violate his right to privacy and digital disconnection, since the following particularities are present in this case:

• Simultaneously to the communication through the social network, a postal mail was sent, all during working hours.
• The worker himself provided his telephone number to the company and usually communicated via WhatsApp, so there is tacit approval.
• The purpose of the communication via WhatsApp was to inform the employee about the coverage of the minimum services, without this implying the provision of services outside the employee’s usual working hours.

In conclusion, despite the fact that the company must use the conventional communication channels with the employee (company bulletin board, corporate mail…), if certain circumstances are given and if the employee consents, the use of WhatsApp for work-related information would not violate his privacy or his right to digital disconnection.

Key Action Points for Human Resources and In-house Counsel

• The recommendation would be to continue to be very cautious and use the usual means of communication, to avoid the risk of violating the right to privacy and digital disconnection of workers.