Elimination of the obligation to record workers' working days

In a judgment of 23 March 2017, the Supreme Court contradicts the decision of the lower court, in which it condemned the appellant, in response to a request from the trade unions, to establish a system for recording the actual daily working hours of its workforce. The High Court does uphold, as it was not challenged, the part of the National Court's ruling which determined that the company must provide the legal representation of the workers with information on the overtime hours worked on a monthly basis.

It therefore rejects an extensive interpretation of article 35.5 E, imposing obligations that limit a right such as that established in article 28.3 of the aforementioned law and in the principle of freedom of enterprise that derives from article 38 of the Constitution and which the TC itself has recognised as essential for the proper functioning of productive activity. 

It is concluded that the failure to keep, or incorrect keeping of the register, is not classified as a clear and definitive infringement, which requires a restrictive and not an extensive interpretation of the sanctioning rule. Furthermore, the failure to keep the register in question is not classified as a misdemeanour, and not informing workers of the hours worked on special days or failing to comply with merely formal or documentary obligations constitutes a minor misdemeanour. 

It is added that the solution does not leave the worker defenceless when it comes to proving overtime, as at the end of the month the company will notify him/her of the number of hours worked, which will allow him/her to claim against this notification. 

In any case, consult our labour lawyers who will be able to advise you in any of our offices in Madrid.