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An offensive screensaver may be grounds for dismissal in Spain

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Sagardoy Abogados largest boutique firm focusing on HR law.
The Madrid High Court has held that an employee who used an image of Auschwitz as a screensaver was fairly dismissed.

In a ruling dated 2 June 2019 the High Court of Justice of Madrid has ruled that the dismissal of an employee who had an image of Auschwitz concentration camp as a screensaver was fair.

The claim, brought by the employee, was dismissed by the Social Court of Madrid and her dismissal was upheld as fair on the grounds that the facts of the case were very serious, and the employee’s blatant intention was to cause insult.

The employee was dismissed not only for using an image of the Auschwittz concentration camp as a computer screen saver, but also because when asked by her boss why she had put the image on her computer, she replied that the employer ran the company as if it were a concentration camp.

The employee did not give a justification for her action and a witness denied that the image was placed on the computer on the occasion of an exhibition on the subject in the city in the near future, as was claimed. The witness confirmed that the dismissed employee told her employer that the reason for putting the image on her screen was directly related to the job, and with his role as chief, comparing him to the head of a concentration camp.

According to the Court, identifying the employer with a figure such as Hitler or similar is in itself sufficiently offensive and serious to justify the maximum disciplinary sanction. It also took into consideration the particular context in which this incident took place: both the company and the superior were of German origin, a fact known by the employee, which made her actions especially serious.

The offence cannot be minimised and justifies the dismissal because it constitutes a fact that interrupts the principle of trust and good faith that any employment relationship demands. The offence was particularly egregious because the employee was not in a problematic or confrontational employment situation (nor even suffering any discomfort) that could provide a hint of justification.

It is very serious both in form and in substance, particularly as the employee had no scruples in making her statement with forceful contempt directly to the superior and given its insulting character, not only in terms of the employment relationship but also in basic human terms. It demonstrated a specific animus injuriandi (spiteful and prejudiced intention) since the employee was aware that, given the nationality of the individual she insulted, the insult and hurt to him would be particularly great.

Jose Miguel Mestre
José Miguel Mestre Vázquez
Senior Associate - Spain
Sagardoy Abogados