The Supreme Court, in Plenary Session, has concluded in its judgment no. 246/2017, of March 23 that “the employer’s obligation to note (record) [the daily working hours] applies only to overtime work performed”, overturning the judgment of the National Court, (December 4, 2015) in the Bankia proceeding.

The well-known above-mentioned judgment of the National Court held that employers, irrespective of whether or not employees work overtime, are obliged to keep a record of the daily working hours of the workforce.

Arising from this judgment the Labor and Social Security Inspectorate (“LSSI”) issued Instruction 3/2016 regarding the intensification of control in relation to working time and overtime, commencing a campaign to verify whether employers fulfilled this obligation to keep the above-mentioned record.

However, in this recent decision, the Supreme Court overturns the judgment of the National Court and holds that the obligation to record is limited to the recording of overtime.

The Court relies mainly on the following arguments:

  • Section 35.5 of the Workers Statute, which is the provision setting forth the obligation to record daily working hours, is under the heading of “overtime” and it expressly acknowledges its purpose is “calculating overtime”.
  • There is no general obligation to monitor ordinary working hours since, otherwise, the lawmaker would have provided for it in Section 34 of the Workers Statute (which regulates ordinary working hours).
  • Only in specific cases is there an obligation to record ordinary working hours (e.g. part-time contracts or special working schedules,) and, in those cases, the legislation expressly provides for it.

The Court explains that Section 35.5 of the Workers Statute cannot be construed in the terms in which the National Court has done so, as its literal and systematic interpretation leads to the conclusion that “it only requires (…) to keep the record of overtime hours worked and to notify at the end of the month the number thereof to the worker and to the workers’ legal representatives the number of overtime hours worked, if this has occurred”.

It may also be pointed out that the failure to record working hours, according to the Court, does not allow for presuming there has been overtime, but the absence of such record will operate against the employer in case the worker proves overtime.

Nevertheless, considering the judgment has three Dissenting Votes, subscribed to by 5 Judges out of 13, it has undoubtedly been intensely debated.

The question that arises now is how is this judgment going to be reconciled with Instruction 3/2016 of the LSSI? In other words, will it make the LSSI reconsider it?

In this respect, the Supreme Court expressly declares that the Labor Infringements and Penalties Law (“LIPL”) does not clearly and conclusively classify as an infringement the failure to keep or the incorrect keeping of the record. The Supreme Court underlines that punitive rules -such as Section 7.5 LIPL, in which Instruction 3/2016 relies on to penalize the failure to keep a daily working hours record, among other possible infringements- must be restrictively and not extensively interpreted.

In conclusion, this judgment is fundamental for employers who are undergoing an inspection by the LSSI, since it should be recalled that the origin of Instruction 3/2016 lies in the judgment of the National Court which the Supreme Court has now overturned.