she Superior Court of Justice of Catalonia (TSJC) declared unfair dismissal of an employee who was caught watching pornography at work. The body understands that this is not a sufficient reason to terminate the employment relationship if the decrease in performance is not proven.
In its decision, the Catalan high court confirmed the resolution of a social court in Granollers (Barcelona) which in June 2022 decided in favor of the employee, Fired in 2020 after his co-worker reported him to the company for masturbating at his workplace while looking at pornographic pages on the Internet.
The company fired the worker because of breach of contractual good faith and reduced performance later, by looking at the security cameras, he concluded that the employee masturbated during his work day while viewing pornographic material on the Internet.
The penalty, however, It has not been considered sufficient to prove that the worker masturbated during his work hoursbut he believed he saw pornography in his workplace, an area isolated from other offices.
The worker does not “show off” his practice to other colleagues
Along these lines, the TSJC rejects that the viewing of pornographic material, in itself, “constitutes a serious and culpable breach of contractual good faith” that entitles the worker to dismissal.
For the court, it can be understood that the employee violated his “elementary duty to attend only to the provision of his services during the working day, without using this time for purposes other than his professional obligations”, but that violation “does not meet the seriousness rating that allows the employer to exercise disciplinary power”.
The judgment added that, in order to determine the seriousness of the plaintiff’s conduct, it is necessary to analyze the specific circumstances of the action, where it occurred and the means and instruments used by the worker.
In this case, the worker does not “show off” his practice to other colleagues and it was not proven that he accessed pornographic material on the company’s computer, so “the employee’s violation was not accompanied by other violations that determine its greater seriousness.”
The judgment added to that The “reported frequency” with which the worker views pornography is unclearbecause the “assiduity” referred to in the dismissal letter cannot be proven