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Global employment briefing: Spain, June 2017

  • Spain
  • Employment law


Supreme Court releases companies from obligation to record daily working hours

The Supreme Court has given two rulings which effectively release employers from what was previously considered to be a general obligation to record the daily working hours of their workforce.

The Supreme Court decisions overturn a National Court judgment from December 2015, which ruled that it was mandatory for companies to record the daily working hours of their workforce. The National Court decision was based on the wording of Section 35.5 of the Spanish Workers' Statute, which establishes that for the purpose of calculating overtime, the working day of each employee shall be recorded on a daily basis.

In light of National Court judgment, the Labour and Social Security Inspectorate issued an Instruction (3/2016) and initiated an enforcement campaign to ensure employers were complying with the ruling by implementing mechanisms to record the daily working hours of the workforce. This had a big impact on employers, as most did not have the systems in place to enable such recording of daily hours and, therefore, faced sanctions for failing to comply.

After a period of uncertainty, the Supreme Court overturned the National Court's decision on 23 March 2017. The Supreme Court read Section 35.5 of the Workers' Statute as imposing an obligation to record overtime worked rather than being a general obligation to record all daily working hours of the workforce.

The Supreme Court decision was not without controversy (five judges of the 13 members of the Supreme Court disagreed with the ruling). Moreover, the Labour and Social Security Inspectorate continued to apply the National Court’s earlier ruling even after it had been rejected by the Supreme Court.

On 20 April 2017, however, the matter was put beyond doubt when the Supreme Court, in a separate ruling, reiterated the principle set out in its March judgment, reinforcing the point that companies are not required to record the daily working hours of all their employees. Since then, the Labour Inspectorate has issued a new Instruction (1/2017) which partially modifies the previous one (3/2016) to bring it into line with the Supreme Court judgments .

It is important to bear in mind that employers must still keep record of overtime worked and there remain some specific cases in which employers must keep a record of hours worked on a daily basis, such as for part-time employees.

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