Can you call your permanent-seasonal workers (fijos discontinuos) back to work via WhatsApp? A recent Supreme Court ruling says yes: instant messaging is a valid tool for calling permanent-seasonal employees back to their posts. It is fast, everyday and practical, but the high court adds a decisive warning, because the responsibility of proving that notice falls entirely on the employer.
In an increasingly digital working environment, many companies in Málaga and across Spain use the mobile phone to manage their workforce. It pays to understand exactly what the Supreme Court endorses and, above all, what it demands in return before entrusting the recall of your permanent-seasonal workers to a simple message.
What the Supreme Court said about WhatsApp
The Supreme Court has endorsed the use of WhatsApp to carry out the recall of permanent-seasonal workers. In other words, the company may use instant messaging to communicate the date on which the worker must return when the active season arrives. The ruling recognises that forms of communication have evolved and that it makes no sense to require only traditional channels such as certified fax (burofax) or registered letter.
Digital agility, however, does not remove the safeguards. The Supreme Court makes clear that the validity of the channel does not equal the automatic validity of the recall: it is one thing for the medium to be allowed, and quite another for the notice to have been given correctly and to be provable.
What permanent-seasonal workers are and why the recall matters
Permanent-seasonal workers are employees on a permanent contract whose work is concentrated in seasonal or intermittent activity. Their employment relationship does not end between seasons: it simply remains suspended until the company needs them again. This contract is regulated by article 16 of the Workers’ Statute, reinforced after the 2021 labour reform.
The key moment for this figure is the recall, that is, the act by which the company notifies its permanent-seasonal workers that they must return to work. A faulty, late or unprovable recall may be interpreted as a hidden termination of the contract, with all the legal consequences that entails.
The burden of proof lies with the employer
This is the central point of the ruling. Even though WhatsApp is permitted, the burden of proof falls on the employer. It is not enough to claim that the message was sent: the company must demonstrate reliably and beyond doubt that the notice to its permanent-seasonal workers was sent and received with sufficient advance notice before the return date.
In practice, an isolated screenshot may prove insufficient if it does not establish who sent it, to whom, when, and whether it reached its recipient. Digital improvisation, as the very spirit of the ruling recalls, comes at a high price in the employment sphere.
Requirements for a WhatsApp notice to be valid
For the recall of your permanent-seasonal workers by WhatsApp to withstand a possible claim, it is worth taking care of these elements:
- Identity of the recipient: the number must correspond unequivocally to the worker being called.
- Record of sending and receipt: both must be provable, not just the sending of the message.
- Sufficient advance notice: the notice must be given with a reasonable margin before the return date.
- Clear content: date, position and conditions of the return expressed without ambiguity.
- Preservation of the evidence: keep the conversation in full and, if possible, backed up.
Risks of not being able to prove the recall
If a dispute arises and the company cannot prove the notice beyond doubt, it faces a serious legal problem. The worker could argue that they were never called and file a claim for unfair dismissal, with the corresponding compensation or, where applicable, reinstatement.
Put another way: the convenience of an instant message turns into a financial risk if it is not accompanied by solid evidence. The Supreme Court’s decision does not ease the company’s obligations towards its permanent-seasonal workers; it transfers them to the digital arena with the same demands as ever.
Practical recommendations for companies
Before managing the return of your permanent-seasonal workers via WhatsApp, we recommend adopting a few simple precautions:
- Define an internal written recall protocol, applicable to the whole affected workforce.
- Combine WhatsApp with a second provable channel (email or certified fax) when the case requires it.
- Keep an orderly record of each recall: date of sending, number, content and read confirmation.
- Check that the order and advance notice of the recalls respect the applicable collective agreement.
- Consult an employment lawyer at the first doubt, before the dispute reaches the courts.
Get advice before the dispute arises
In the day-to-day running of a company, doubts about contracts, regulations or workforce management appear when least expected, and leaving these details to chance can prove very costly. The correct recall of permanent-seasonal workers is a good example: a slip in proving the notice can end in an expensive claim.
At Tecem Abogados we help companies, self-employed professionals and SMEs to anticipate these problems: we review your contracts, design secure recall protocols and stand by you if the dispute has already arisen. Do not wait for litigation to put our experience on your side.
Frequently asked questions
Is it legal to call permanent-seasonal workers via WhatsApp?
Yes. The Supreme Court has endorsed WhatsApp as a valid means for the recall, provided the company can reliably prove that the notice was sent and received.
What must the company prove?
That the message was sent to the right worker and received with sufficient advance notice before the return date. The burden of proof falls entirely on the company.
What happens if the recall cannot be proved?
The worker may file a claim for unfair dismissal, with the corresponding compensation or reinstatement. That is why it is wise to keep every recall and, if necessary, reinforce it with a second provable channel.
Is a WhatsApp screenshot enough?
Not always. An isolated screenshot may be insufficient if it does not establish who sent the message, to whom and when. The advisable approach is to keep the full conversation and have an evidence protocol in place.