In recent years society has undergone major changes in the ways of relating, due to the proliferation of new systems for communicating via Smartphone devices, tablets, etc. to such an extent that terms such as “message” are no longer used and instead we use the name of the messaging application used.
In this sense, the world of law has not been alien to these changes and we are finding more and more cases in which thanks to new forms of communication through telephone devices we have evidence that did not exist before. Specifically, in the field of labour law, we can find dismissal communications carried out by means of a Whatsapp message, or be able to prove the existence of an employment relationship without Social Security registration thanks to the daily conversations between an employee and his employer.
What means of proof fit into the labour procedure
Article 90 of Law 36/2011, of 10 October, which regulates Social Jurisdiction, establishes, in paragraph 1, that the proposed evidence must be useful for what it is intended to accredit. Otherwise, it could be considered impertinent evidence by the judge and inadmissible. From then on, the parties can use all those legally regulated means of evidence, including the reproduction of audio, video and data recordings.
Likewise, the same article in its paragraph 2 establishes that proofs whose origin or form of obtaining have supposed to infringe fundamental rights or public liberties will not be admitted. Therefore, to the classic means of evidence such as the interrogation of parties and witnesses, paper documents, expert opinions or judicial recognition, should be added electronic documents, audio and video, which in many cases, as we will see, can be reinforced with other traditional means of evidence.
In this article, we want to focus on how a Whatsapp conversation can be used as evidence in a labor procedure, so that it is admitted as valid and has the probative force that is intended.
How the Whatsapp test should be provided in the labour procedure
There is not only one way to provide this type of test, but several. But it is important to prove not only the content of these messages but also their authenticity. There are several ways to do this:
Computer expertise: Surely it is the way that gives more guarantees of the authenticity of the messages, and surely it will be the most recommendable way in case there is a lot of content. The negative side is that it is a means of proof that involves an economic cost that can sometimes make litigation uneconomical.
Screenshots of the mobile phone with the messages: This is a perfectly valid form, but it does not guarantee the authenticity of the content of the messages. However, if it is accompanied by other means of evidence, such as a notarial deed in which the notary attests that the content of the Whatsapp messages on that mobile coincides with those screenshots; or by displaying the mobile phone before the lawyer of the administration of justice (formerly judicial secretary); or by showing the party or a witness those screenshots; or finally, there is also the possibility of judicial recognition so that the mobile phone is exhibited to the judge in the same trial and recognizes the reality or not of the content of those messages and recognizes the reality or not of the content of those messages.
Document with the transcription of the messages: The operation would be identical to the one exposed in the case of images with mobile phone screenshots.
However, we must say that if the opposing party does not deny the reality of these messages or challenge their authenticity, in principle the judge will admit it as evidence and will consider its content to be true.