Spain: Are Employers Obliged To Maintain A Daily Register Of Working Hours In Spain?

In Short

The Situation: Recent debate in Spain relating to the responsibilities of employers focused on whether companies had a legal obligation to maintain a daily record of an employee's working hours.

The Resolution:  Two recent decisions by Spain's Supreme Court Employment Chamber confirm that hours-worked logs are mandatory only when employees perform overtime hours.

Looking Ahead:  Both decisions point to the belief that a legislative gap exists, perhaps creating an opening for the Spanish government to respond with reform measures.


In March and April 2017, the Supreme Court's Employment Chamber resolved (through Judgments 246/2017 and 338/2017) that, as a general rule, there is no legal obligation for companies to maintain a daily record of the employee's working hours. The relevance of these resolutions is palpable since they cause changes in the criteria that both the Spanish courts (in particular, the Spain National Court, "Audiencia Nacional") and the Labour and Social Security Inspection ("ITSS") have sustained in recent years.

The Supreme Court determined that the daily record of working hours must be maintained only when employees perform overtime hours. Furthermore, it supports this decision with a systematic argument. Specifically, it states that the obligation to log daily working hours is established in Article 35 of the Spanish Workers' Statute, under the heading of overtime regulation. The Supreme Court alleges that, if the legislator had intended the institution of maintaining daily working hours records as a general mandate (not only in case of overtime performance), it would have recourse to its regulation within the provisions concerning the employees' ordinary working hours, as it happens in the case of part-time work. Finally, it adds that the absence of such record is not even stipulated as a punishable conduct in the legislation which regulates the infringements and sanctions of the social order. Therefore, it is impossible to make a broader interpretation of said sanctioning regime.

It is important to emphasize that Judgment 246/2017 of the Supreme Court contains three dissenting votes that differ from the majority view of the chamber. It should be highlighted that the second dissenting vote states that the legal debate was erroneously raised since the issue was not approached from a broader perspective and solely focused on the analysis of the overtime provisions. In this sense, it states that the obligation to record the daily working hours cannot be based on the legal regime of overtime (where, in fact, a working hours record is required only in the case of performing overtime hours), but in those provisions linked to the employer's obligations on health and safety, proportionate remuneration and effective control of the daily working hours. According to such dissenting vote, these matters are sufficient grounds to force companies to keep a record of the daily working hours. This position is relevant because it could serve as a basis for future resolutions of the Supreme Court.

The criteria used by these judgments have had an important impact in the ITSS, which declared in its Instruction 3/2016 that the working hours' daily register was mandatory for all companies regardless of the performance of overtime hours. However, on May 18, 2017, the ITSS issued a new instruction that is in line with the conclusions of the analyzed judgments, including some significant nuances. In particular, the Instruction 1/2017 states that the content of Instruction 3/2016 remains in force except for the company's obligation to register the employee's daily working hours, whose omission cannot be considered as a punishable action according to the latest judgment of the Supreme Court. In any case, it is important to note that, by virtue of Instruction 1/2017, within the inspection activities of the ITSS, the latter could ask the companies for a working hours' control system with a view to assessing those facts that could lead to an infringement of the working hours' regulations.

It will be interesting to see the criteria the Labour Authorities uses in resolving those sanctioning procedures that were initiated by the ITSS as a result of the absence of a daily working hours record in the company. That is to say, those cases in which the ITSS, based on Instruction 3/20116 and before the analyzed judgments of the Supreme Court were issued, have initiated a sanctioning procedure against a company for the nonimplementation of a daily working hours recording system. In this regard, it cannot be ignored that the criteria of the Supreme Court is a significant jurisprudential basis for companies to leverage to avoid the corresponding sanction.

Finally, it should be taken into account that although Spanish labour legislation does not expressly establish the daily working hours record as a general mandate, attention should be given to future judicial resolutions and ITSS inspections that could introduce practical nuances in the commented judgments. Regardless of the above, these judgments are opening the way to a legislative reform that addresses the general obligation for companies—not only in cases of performing overtime hours—to record the daily working hours of their employees. Jones Day will continue following up on this issue and any important practical implications for companies.


Three Key Takeaways

  1. The Supreme Court dictated that a daily record of working hours must be carried out only when employees perform overtime hours.
  2. Still, a dissenting opinion, against the majority opinion of the Supreme Court, argued that the responsibility to record daily working hours cannot be based on the legal regime of overtime, but rather on provisions tied to a company's obligations relating to health and safety, proportionate compensation, and effective control of daily working hours.
  3. The Supreme Court decisions that are analyzed in this Commentary could lead to legislative action requiring that companies keep broader records of employee work hours.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.