Whatsapp as evidence in a labour dismissal trial

According to the judgment of 25 April 2014 issued by the High Court of Justice of Galicia, it is possible to use a transcript of the messages of a WhatsApp conversation as evidence in a trial related to labour law for the purpose of justifying or discrediting a disciplinary dismissal. Provided, however, that it does not entail a violation of article 18.3 of the Spanish Constitution, i.e., the secrecy of communications.

Undoubtedly, beyond the above, the use of WhatsApp conversations as evidence in a labour trial is quite complex. For this reason, here we want to explain everything you need to know about it.

Why is it legal to use WhatsApp in a labour lawsuit?

The reason why, within the context of a labour trial, it is possible for a worker or an employer to use a WhatsApp conversation as evidence lies in the fact that current case law contemplates the use of any means of evidence that may be necessary as long as it is framed within the current legality.

Within this consideration, we can refer to any mechanism of reproduction of the word, whether in writing, sound or image. Except in the case of having had access to the messages in violation of the sender's fundamental rights or in an illegal manner, you can provide the WhatsApp conversation as evidence.

Conditions for a WhatsApp conversation to be considered as valid evidence

A WhatsApp conversation can be as valid evidence as a recorded phone call or an exchange of emails. However, it will only be considered that the right to secrecy of communications is not being violated when the person providing the conversation is a participant in it. For example, an employee can provide the judge with a conversation that he or she had with the employer through this messaging platform, but never one that the employer had with another superior or colleague in which he or she did not take part.

What is the right way to provide WhatsApp conversations as evidence in an employment lawsuit?

This may seem like a very simple question, but it raises serious doubts for complainants and defendants. Before the trial, it is necessary to determine whether the conversation will be provided by means of a hard copy, a screenshot or any other system.

Undoubtedly, the best option is to send the conversation by e-mail to a specific address provided by the judge. The reason? In this way it is possible to have convenient access to all messages and to obtain additional information such as, for example, the date and time at which the conversation took place. This also makes it easier to avoid misunderstandings.

It is only advisable to print out the conversation if it was particularly short. To be honest, it is not very common for the judge to agree to view the mobile phone screen directly in order to read the conversation, unless something important has happened in the conversation or in a new one after the presentation of the first one.

Can problems arise when presenting a WhatsApp conversation as evidence in a labour court?

Unfortunately, the answer is yes. In fact, problems are much more common than it may seem. Let's discuss the most important and frequent ones:

The person with whom the conversation was held.

It is common that, when a complainant sends a WhatsApp conversation to the judge, a certain name appears as the sender of the messages. This is because we all save phone numbers in our address book under a certain name in order to access them more easily.

However, this can lead to the problem of the other party to the conversation objecting that it was not him and that everything is false. In many cases, by the time the person concerned realises his or her mistake, it is too late.

For this reason, it is best to be proactive and, before sending the e-mail conversation, it is advisable to delete the name of the contact so that the screen displays the telephone number of the person with whom the conversation took place. Afterwards, however, it will be necessary to prove that the number belongs to the person being accused. Generally, in the case of an employer, it is sufficient to attach a document that proves that the owner of the telephone number is the company itself.

Conversation manipulation

WhatsApp does not keep any copy of the conversations that its users have with each other. Therefore, there is no original document from which to verify the veracity of these conversations. This means that, very often, it is argued that there has been a forgery to rule out this evidence in the labour trial.

However, in order for the judge to challenge the evidence, it is compulsory to prove that it is false. In fact, if this happens, the judge is obliged to interrupt the proceedings so that, within the period of time stipulated, the affected party can file a criminal complaint for forgery of a private document. Until the criminal proceedings have been completed, the labour proceedings cannot be resumed.

However, it must be said that this is not very different from what happens with regard to the falsification of any conversation held through another means of communication.

A good way to prevent this from happening, or at least to make it as difficult as possible to challenge it, is to use a notary to attest that the conversation between the two parties has taken place. However, it is the plaintiff who will have to bear the relevant costs.

What is the value of WhatsApp conversations in a labour lawsuit?

This is a subjective question as the importance of the conversation within the process will depend, fundamentally, on what the judge determines. Therefore, the probative value of the WhatsApp file provided will be different in each case and in each trial and must be based on the testimony of witnesses and other evidence that the plaintiff can gather and provide.

However, as we have already commented above, this is no different from what happens with conversations held by telephone, by letter or by any other communication system when they are provided as evidence in an employment trial. So it is not possible to distinguish between one and the other. The only reason why there is controversy is because of the relatively new nature of this messaging platform and the lack of jurisprudence that this fact entails.

In short, there are already a multitude of judgments that, since the first one was published in 2014, have taken into account a conversation held on WhatsApp as evidence. Bearing in mind the great implantation of this application in society, it is not surprising that, in the coming years, the number will increase ostensibly. And not only WhatsApp, but also Line, Telegram, Facebook Messenger or any other messaging platform with similar characteristics. If you have any doubts about this, contact G. Elías y Muñoz Abogados, we will be delighted to help you.