As we know, due to being included in the social debate and since Royal Decree 8/2019 on urgent measures for social protection and combating job instability in working hours was approved in 2019, all companies must individually record the working hours of their employees, so that these daily working hours records are guaranteed, including their specific working hours both when they begin and when they end. 


Therefore, in strictly legal terms, after the aforementioned Royal Decree was approved, Article 34.9 of the Spanish Labour Relations Act is the provision that classifies this matter as follows:


“The company must guarantee the employees’ daily working hours are recorded, which must include the specific times each employee starts and ends his/her working hours, notwithstanding the flexi-hours stipulated in this article”.
 

A series of practical problems are currently arising due to the lack of specification of the text provided above, which we will deal with below, since it does not seem to expressly require registering the interruptions or breaks between the start and end of the employees’ daily working hours that are not considered effective working time and, even more important, it does not mention anything about how the registration must be carried out, (its format or features), so that it would be fully valid by deeming that the records meet the requirement to “guarantee” their validity.


What must the features for the daily records be?
 

Regarding the foregoing, we can say here that the records must be objective, reliable and accessible, otherwise it could be presumed that the effective working hours are all those between the start and end times recorded, the employer being responsible for proving the contrary. 


These terms that, as can be seen, are far too generic, can be obtained from the judgement of the High Court of Justice of the European Union, Grand Chamber, of 14 May 2019, C-55/2018, related to Directive 2003/88:
 

“This is because, although the need for special protection could have led the legislator of the Union to expressly stipulate such obligation regarding certain categories of workers, a similar obligation, consisting of setting up a system that allows the measurement of the duration of the daily working hours in an “objective, reliable and accessible” way is imposed in a more general manner for all the workers in order to guarantee the effective application of Directive 2003/88 and to bear in mind the importance of the fundamental right included in Article 31, section 2, of the EU Charter, which has been referred to in section 30 of this judgement”.


However, the following considerations can be drawn from the analysis conducted in this article:

  • The registration must take place on a daily basis. Weekly or monthly registration is not admissible but the working hours of each employee must be recorded on a day-by-day basis.
  • The registration must be at the beginning and end of the working hours. Therefore, in principle, the work breaks need not be recorded. 
  • The company must keep the records of working hours for a term of four years and they must be made available to the workers, their legal representatives and the Labour and Social Security Inspection Department.
  • The regulations do not specify the format or features of the records; in this respect, from Europe it has been specified that they must be objective, reliable and accessible, requirements that are not very specific and neither provide full certainty to ensure the system in question is being suitably implemented.
     

Which registration systems have been approved or not by Spanish courts?


In this respect, as we have already explained, the law on this specific matter does not state anything about how the records must be registered; hence, in principle, any system that meets the requirements for reliability, objectivity and accessibility would be valid and such system cannot be changed or altered by the company. In this respect, as examples of the previous explanations, a written document, an Excel spread sheet, an entrance system with a code, card or even biometric systems would be valid, but be careful when implementing and using the latter because they could possibly infringe the employees’ right to protection of their personal data.


However, in spite of the obvious lack of specification in the text of the law, the regulations have not undergone any legislative amendment in an attempt to improve its validity, which could have been prohibiting paper records or offering a specific mandatory system in order to achieve greater objectivity. 


Due to this situation, as has happened on numerous occasions, the courts and their judicial judgements have been the ones that have been interpreting the legal validity of the systems to control working hours used by companies and, merely for informative purposes, for the purpose of providing the most interesting summary possible, we explain the following:


The judgement of the Labour Division of the Supreme Court of 5 April 2022, appeal number 7/2020, (the “Zurich” case), in which an agreement was ruled valid that, according to which, the employees themselves are the ones who must record their working hours every day by merely and simply accessing the company’s computer, so that from the time it is opened and closed, the IT tool would automatically record the start and end of their working hours.


The judgement of the Labour Division of the Supreme Court of 18 January 2023, appeal number 78/2021 (The Spanish Federation of Savings Banks (Confederación Española de Cajas De Ahorros - “CECA”) Case), which considered the agreement was valid stipulating that every day all the staff must enter each working day, the time it begins, the time it ends and the number of hours worked during the day in an application made available to them, in a mandatory manner and, for such purpose, deducting their break times and any interruption that cannot be deemed as effective working hours.
 

The judgement of the Labour Division of the National Court of 9 December 2020, appeal number 218/2020, which approved the registration on paper completed by the workers themselves, due to considering that this system was objective and reliable and did not infringe the doctrine of the judgement of the Court of Justice of the European Union of 14 May 2019 explained above.


What are the consequences of not implementing a register of working hours or not doing this correctly?
 

The lack of protocols or policies for recording working hours and infringement of the regulations and case law related to recording working hours can result in the following legal consequences, among others:

  • Possible consideration that the rest breaks, to eat, smoke etc., are considered working hours unless there is another specific regulation otherwise in a collective bargaining agreement related to this matter. 
  • Compensation for overtime due to longer working hours, both economically and as double contribution to the social security system. For informative purposes, the judgement of the High Court of Justice of Catalonia of 14 April 2022, appeal number 6963/2021 or the judgement of the High Court of Justice of the Balearic Islands of 2 May 2023, appeal number 607/2022 considered that if no overtime was worked, it “would be easy” for the company to prove this by submitting the working hours records, otherwise, if they were not submitted, it could be presumed that such overtime was worked, always with the possibility of proving the opposite by means of other kinds of evidence.

 

In other words, the lack of records of working hours does not guarantee judicial claims for overtime will be successful, but the company would hold the burden of proof.
 

  • Administrative sanctions for serious infringement from €751 to €7,500, (Article 7.5 of the Spanish Labour Offences and Penalties Act).
  •  Claims to terminate the labour relationship by applying Article 50 of the Spanish Labour Relations Act, with the resulting severance pay equivalent to the one for unfair dismissal or even compensation for possible damages caused due to violating the right to digital disconnection, infringement of prevention of psychosocial hazards, etc.

     

Author: Alejandro Alonso Díaz, lawyer at Labour Law