The Supreme exempts companies from registering the hours of their workers

The Plenary of the Social Chamber of the Supreme Court points out that they should only keep a record of overtime hours performed, according to the interpretation they make of what is established in article 35.5 of the Workers' Statute

The Supreme Court has rejected that companies keep a mandatory record of the daily hours of the entire workforce in order to verify compliance with the agreed working hours and schedules, although it maintains that they must account for overtime hours performed by employees as established in article 35.5 of the Workers' Statute.

In a Supreme Court ruling made public yesterday, the social court upholds an appeal by Bankia against the ruling of the National Court that in 2015 condemned the entity at the request of the unions and forced the establishment of a registration system.
This criterion contrasts with that of the Labor and Social Security Inspectorate in its instruction 3/2016 and various judgments of the National Court.

The magistrates warn that companies are not obliged "for now" to keep a time record, which is why the courts cannot "replace the legislator by imposing the establishment of a complicated system, through a generic sentence.

What it does maintain is that the company must transfer to the legal representation of the workers the information on overtime performed on a monthly basis and that, although it is true that it would be convenient "a legislative reform that would clarify the obligation to keep a time record and provide the worker with proof of working overtime", for now there is no such obligation, so the Courts cannot replace the legislator by imposing on the company the establishment of a complicated system of time control that would force them to negotiate with the unions the system to implement. «And it is not simply a question of registering the entry and exit, but the development of the effective working day with the multiple variants that the existence of different days implies, the work outside the workplace and, where appropriate, , the irregular distribution of the working day throughout the year».

The worker is not defenseless

For the Supreme Court, this decision, which is based on the interpretation of the Workers' Statute, does not leave the employee defenseless when it comes to proving overtime, since the company will notify them of the number of accumulated extras at the end of the month.

In this sense, as there is an express obligation to record daily overtime and inform the company of the same to the worker at the end of the month and article 217.6 LEC does not allow overtime to be presumed when its record is not kept but it plays against those who do not wear it when the worker proves that if he did, he is not defenseless.

"Companies must transfer to the legal representation of workers the information on overtime performed on a monthly basis"

A solution that also conforms to the provisions of the community regulations on working hours and the organization of working time, which only includes the need to keep a record when ordinary hours are exceeded.

The sentence has three particular votes; Judge Lourdes Arastey, one of those who has spoken out against the ruling, recalls that the obligation to record overtime "is emptied of content if monitoring or control of the day worked by the worker is not carried out." In his opinion, the concept of overtime only arises when the ordinary working day is exceeded.

Two other judges, Jordi Agustí and Rosa Virolés, accept Arastey's argument but also recall that what is not guaranteed with the ruling reached is that the worker has documentary evidence that proves the overtime worked, explains Efe.

Both regret the court's decision, considering that working time is a condition of "great social and economic relevance" that should have led the court to ratify the sentence of the National Court "in the face of the social reality of a generalized crisis." .