Dismissal of a worker who, on leave for depression, posted content on Instagram is justified

An employee of a company that has been selling books and magazines since 2008 applied for temporary disability leave for depression at the end of July 2022, alleging an anxious emotional state, cognitive and concentration deficits, memory loss and hopelessness.

A situation which, according to her, forced her to be on medication and prevented her from leaving the house. Nevertheless, during the months she was incapacitated.

However, the employee advertised herself as a nutritional coach through social networks, publishing content on social networks about beauty and health, giving advice to users about different aesthetic and dietetic products, and promoting the consumption of a brand’s products, is incompatible with a temporary incapacity due to depression.

The Social Division of the High Court of Justice of the Valencian Community after dismissing the appeal filed by the worker of a company who, as a result of publishing two publications on her personal Instagram account, was dismissed disciplinarily, despite the fact that she claimed that it was all pure ‘postureo‘.

The judge relies on case law to dismiss the appeal

According to the Supreme Court of Justice of the Valencian Community, the issue to be resolved revolved around determining whether the plaintiff had committed a serious and culpable breach of employment that could give rise to disciplinary dismissal.

The judge in charge of resolving the case concluded that, if the plaintiff had the energy, concentration and desire to advertise products, lifestyle advice and nutrition and beauty treatments on a platform as competitive as Instagram, she was also capable of duly performing her work as an administrative officer in the company for which she provided services under a permanent contract.

The argument that the applicant was merely “posturing” does not hold water, as posting almost daily, albeit digitally, requires a task of content and photo selection that is not automatic. This involves effort, concentration and attention, which is incompatible with a cognitive and memory deficit and, ultimately, with a disabling mental disorder.

Conclusion

The court has dismissed the appeal and upheld the first instance judgement.

If you have any doubts regarding this matter, please do not hesitate to contact us, either by telephone to Úrsula Olivares Lamela or by e-mail to uol@btsasociados.com, we will be delighted to help you.