Employees who work after hours cannot be fired for personal activities within the working day

The Superior Court of Justice of Madrid (TSJM) has confirmed the unfairness of the dismissal of a worker who, during working hours, carried out domestic tasks and sports. The magistrates have considered that he has a good reputation, his performance has not dropped and that he usually works outside of his shift to adapt to his clients.

This decision confirms the one already taken by the Social Court No. 43 of Madrid on July 14, for which they will have to reinstate the worker or pay compensation of 68,470 euro.

The dismissed complainant had been working for the Avizor company since 2011, a company dedicated to the sale of sanitary products for the eyes.

Until the time of dismissal, they had a teleworking schedule from 9:30 a.m. to 5:30 p.m. But, having flexible hours, sometimes came in earlier and left later, or even worked weekends, holidays, and vacation days.

But in November 2021, they received an unexpected surprise from the company despite the fact that they closed the year achieving 100% of the objectives set for the job: a letter of dismissal for disciplinary reasons.

The letter said that the company had discovered through a detective that during the working day the employee took their daughters to and from school, went to the gym, played paddle tennis and had a drink with someone. Therefore, not carrying out the task continuously from home.

The Social Court agreed with the worker and ordered the company to reinstate the employee, considering that the dismissal was unfair or, instead, to compensate 68,470 euro. The judge emphasised that the worker carried out a schedule to stick to the interests of its clients, coming to work on weekends and holidays.

But the company, not being satisfied with the ruling, decided to appeal it before the TSJM, considering that the facts declared proven in the lower court ruling had to be modified.

Instead, the magistrates made the company see that the facts are those that were presented at the hearing and the proposed evidence was collected by the parties and admitted by the judge.

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