Can offensive language justify dismissal?

Disciplinary dismissal is one of the most forceful tools available to a company to act against misconduct and offenses by its employees. However, it is not always easy to justify it. A recent case dealing with the assessment of offensive expressions towards the company reveals how a conflict situation may not be sufficient to validate the employee’s dismissal. Let’s take a look at the details of this ruling that can make a difference in disciplinary decisions.

The situation: offensive expressions and offenses in the whistleblower channel

On March 25, 2023, an employee with more than 15 years of seniority received a letter of disciplinary dismissal from his company. The cause: several e-mails sent through the internal whistleblower channel in which the employee expressed his dissatisfaction vehemently and with highly offensive language. The insults related to his dissatisfaction with the medical care he received and the suppression of a temporary disability allowance.

The expressions used by the worker ranged from “you are all sons of bitches” to “long live Franco, long live Hitler” and “I am tired of putting up with this slavery”. In view of this behavior, the company decided to dismiss him, considering that these words constituted a serious misconduct that made it impossible to live together at work.

Case evaluation: from the Social Court to the High Court of Justice

The employee filed a lawsuit for dismissal and the Social Court considered his dismissal unjustified, alleging that the facts did not constitute a sufficiently serious misconduct to justify disciplinary dismissal. The company, not satisfied with this decision, brought the case before the Superior Court of Justice of Las Palmas.

The Chamber of the TSJ evaluated the nature and context of the verbal offenses, a crucial point to determine the justification of a disciplinary dismissal. Case law establishes that such offenses must involve a frontal attack on the honor of the persons affected, creating an untenable atmosphere of labor coexistence, and that there must be proportionality between the offense committed, the person committing it and the sanction imposed.

The whistleblower channel and lack of sufficient severity

Although the TSJ recognized that the employee’s expressions were offensive and inappropriate, it also concluded that they were not serious enough to merit dismissal. This was due, in part, to the fact that the emails were sent to an internal channel for complaints and grievances, a medium created by the company precisely to manage internal grievances. Therefore, these communications did not acquire public significance and did not reach the ears of the possible offended parties directly.

Moreover, the offensive words were not specifically directed at any specific person, but were addressed to the company in general. This aspect dilutes the consideration of a personal or direct attack on a person’s honor, limiting its repercussion.

Employee’s mood and personal context

Finalmente, el TSJ también valoró el estado emocional del trabajador. Se acreditó que el empleado se encontraba ofuscado e iracundo, y que había sufrido ansiedad por factores externos. Este estado anímico fue tomado en consideración ya que habría influido en la intensidad y el tono de las quejas manifestadas.

Conclusion: the importance of assessing each individual case and avoiding offenses

The Supreme Court of Las Palmas dismissed the company’s appeal and upheld the unfairness of the dismissal, recognizing the corresponding compensation to the employee. This judgment reinforces the need to carefully evaluate the context, the seriousness of the expressions and the medium in which they are reproduced before taking a decision as forceful as disciplinary dismissal.

For companies and human resources departments, this judgment underlines the importance of handling internal conflicts with prudence and considering all factors before resorting to an extreme measure.

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