When Can Social Media Content Be Used to Justify the Dismissal of an Employee?

22 July, 2025
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Dret laboral i protecció de dades
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Lucas Charnet


Recent case law —particularly a ruling by the High Court of Justice of Catalonia— confirms that content publicly shared on social media can be used as evidence in the workplace, including as grounds for dismissal, provided that three key principles are respected: suitability, necessity, and proportionality.

1. ### Suitability

The images must be directly related to the alleged misconduct. In the case at hand, the company argued that the trips taken by the employee while on medical leave could unduly prolong her temporary incapacity.

2. ### Necessity

The collection of the images must be due to the impossibility of using less invasive means. Here, since the content was public and the specific medical reason for the leave was not disclosed, the company had no reasonable alternative to verify the employee’s conduct.

3. ### Proportionality

The measure must be balanced in relation to the legitimate aim pursued. The court held that accessing TikTok and using the images did not amount to excessive intrusion, as there was no manipulation or malicious use of the content.

Implicit Consent on Social Media

One of the key aspects of the case was that the employee was tagged in the posts. Although the images were uploaded by a third party, the fact that the employee was tagged and did not request their removal or report their publication was interpreted by the court as a form of implicit consent.

This point is crucial: if someone is tagged in a TikTok, Instagram, or Facebook post and does not object or use the privacy settings available on the platform, they are considered to have tolerated the public sharing of the content. And if the information is freely accessible —without passwords or private profiles—, there is no reasonable expectation of privacy.

Right to Image and Privacy: Legal Limits and Nuances

The right to one’s own image and the right to privacy, recognised in Article 18 of the Spanish Constitution, are fundamental personal rights. However, as the Constitutional Court has repeatedly clarified, these are not absolute rights. They may be restricted when other legitimate rights or interests are involved, provided that legal safeguards are respected.

In the employment context, the employer has the right to monitor compliance with contractual obligations. This includes, under certain circumstances, verifying the authenticity of a medical leave, especially where there is suspicion of fraud or behaviour inconsistent with the recovery process.

That said, any employer action that involves processing personal data —including images— must be carried out with extreme legal caution. Accessing private social media content, using fake profiles to gather information, or sharing images without a legal basis may lead to severe sanctions under both labour law and data protection regulations.

What Should a Company Consider Before Using This Type of Evidence?

Before taking disciplinary measures based on social media content, companies should evaluate the following:

1. Are the images public? If the content was posted on a public profile and is freely accessible, its use is more likely to be considered legitimate.
2. Who posted the images? If it was the employee or someone with their implied consent (e.g., they were tagged and did not object), this strengthens the legitimacy of their use.
3. Is it a serious issue related to the workplace? There must be a clear connection between the content and a relevant disciplinary breach. A photo of the employee drinking coffee does not carry the same weight as a video of them engaging in risky physical activity while on medical leave.
4. Have the employee’s rights been respected? Wherever possible, the employee should be informed of the disciplinary proceedings and given a chance to explain the context behind the images.
5. Are there less invasive alternatives? If other methods could be used to corroborate the facts without resorting to personal images, those should be prioritised.
6. Disciplinary Dismissal: Fair, Unfair or Null? In the case analysed, the High Court of Catalonia ruled that the use of the images was lawful, but the dismissal was unfair, as it was proven that the employee’s activities were part of her prescribed medical treatment.

This leads to a key conclusion: lawful use of evidence does not automatically mean the dismissal is fair. The company must still prove that the employee’s conduct constitutes a serious and culpable breach, significant enough to justify termination of the employment contract.

When Is Consent Required for the Use of Images?

A different scenario arises when the company wants to use employee images for commercial purposes (e.g., on the corporate website, in advertising campaigns, or on official social media accounts). In such cases, prior, express, and informed consent from the employee is required, as the use is not related to contractual obligations or management authority.

This consent must be:

Unambiguous: verbal or generic authorisations are not enough.

Informed: the employee must clearly understand how their image will be used.

Revocable: the employee can withdraw their consent at any time.

Unauthorised use of employee images for commercial purposes may lead to claims for damages, with compensation amounts exceeding €7,500, according to judicial guidelines and penalties established in labour and data protection law.

Best Practices for Employers: How to Handle Employee Posts

To avoid legal risks, MES Advocats recommends implementing the following best practices:

1. Train middle managers: Team leaders should understand the limits of disciplinary authority and the importance of respecting fundamental rights.
2. Document all actions: Save and properly certify (within legal boundaries) any social media content before it is deleted. If necessary, use a notarial act for evidence.
3. Assess on a case-by-case basis: There is no one-size-fits-all solution. Each case must be evaluated for proportionality and legality.
4. Seek legal advice before acting: Data protection, fundamental rights and employment law are especially sensitive areas. Legal guidance can make the difference between a lawful action and one that is not.

Conclusion

Images that an employee publishes —or consents to being published— on social media can, in certain situations, be used by the company as evidence in disciplinary proceedings. However, doing so requires caution, proportionality, and full respect for fundamental rights.

At MES Advocats, we help companies navigate these situations with legal certainty, advising on how to properly manage digital evidence, assess its legal impact, and implement sanctions that can withstand judicial scrutiny. If you have questions about a specific case or need to update your internal procedures, we are here to help, contact us.

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Consentimiento tácito y protección de datosDerecho a la intimidad y a la propia imagenDespido disciplinario y redes socialesJurisprudencia laboral recientePrueba digital en el ámbito laboral

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