Court rules dismissal of two employees caught having sex at work in Spain was fair

In the midst of the debate on whether it is legal to ban romantic relationships at work, two employees of a Catalan sports club have been dismissed for going one step further and having sexual relations on company premises. The High Court of Justice of Catalonia has declared the dismissal to be justified as the couple had committed a breach of contractual good faith.

The two employees are a married couple. He was a maintenance manager with seven years' seniority and she had been a cleaning service employee for two years. According to the sentence, the events occurred on a Sunday morning, when two subcontracted workers went to look for the maintenance manager so that he could help them unload some bicycles and pick up some tools. When they arrived in the area where he could be found, they found the door closed and heard some sounds - "a symphony of moans", compatible with a "sexual act", as the company described it during the trial. After a few minutes, the man came out "pulling up his trousers and they saw his wife inside, who the witness identified as having seen her on other occasions.

Three weeks later, both workers received a letter of dismissal, which also accused them of arriving more than an hour late for work for a month, without cause or justification, and of pretending to be the other during the clock-in process. Not only that, the company also accused them of "daily abandonment" of the workplace for more than an hour, "supposedly for breakfast", and then for 30 minutes between 1.30pm and 2pm for lunch. The letter stated that, despite having been verbally warned of this irregularity, "their response was to violently confront the person who had reprimanded them, without subsequently correcting their conduct".

Both employees appealed against the dismissal. Initially, the social court of Manresa considered that the company had not acted correctly and had misinterpreted the disciplinary code in the applicable collective agreement, "stigmatising" the sexual act. "The performance of a sexual act in and of itself is not what should be censured, but the abandonment of the workplace" during working hours and "ignoring the tasks that they had to carry out at that time". In this first ruling, the company was ordered to reinstate them or pay him 13,213 euros and her 2,343 euros in compensation for unfair dismissal.

However, in its appeal to the High Court of Justice of Catalonia, the company disagreed, stating that not only the act of abandoning the workplace could be considered punishable. "Let's imagine for a moment that we go to the grocery store in our neighbourhood and in the back room there are the fruit seller and the deli owner, whose moans can be heard from the entrance, or that we go to the gym and while we walk around the facilities we hear the sexual moans of the zumba instructors performing all kinds of sexual practices, or that we go to the health centre in our area and the health workers on duty lock themselves in the consulting room to satisfy themselves - it is honestly not serious and it cannot be compared to playing parcheesi or chess, as stated in the ruling under appeal. It is a clearly punishable conduct due to its obvious social reproach, which is even regulated in the penal code", the company stated.

Finally, the High Court of Justice of Catalonia upheld the company's appeal, considering that the behaviour of the workers had put the good name of the club at risk, "as anyone, including children, could have passed by and come across the symphony of moans/sounds produced by their sexual relations".