Throughout 2017, the High Courts of Justice of Madrid, Andalusia, the Basque Country and Extremadura have issued several judgments which serve as a reminder of the existence of the business obligation for employers to provide, in certain cases, a dining area for employees.
The 2017 judgments dated 23 October of the High Court of Justice of Extremadura, 14 and 29 September of the High Court of Justice of Madrid, 26 April of the High Court of Justice of Andalusia and 7 March of the High Court of Justice of the Basque Country, recall the existence and scope of this obligation which affects the majority of companies in our country.
It is, indeed, a business obligation which is often forgotten given that its origin is found in two pre constitutional regulations, specifically in the Decree of 8 June 1938 on the establishment of dining areas in companies and their development regulations and the Ministerial Order of 30 June 1938.
These regulations, the validity of which has been confirmed by the High Court in its judgments of 26 December 2011 and 19 April 2012, distinguish the scope of this business obligation based on certain circumstances.
On the one hand, it establishes that those companies that do not grant their employees a minimum effective period of two hours for lunch and those companies where half of the workforce request this, must have a dining room with tables, seating, light, running water and adequate means to heat the food.
This obligation also applies to those companies where, even though theoretically a break of two hours is offered, there are certain circumstances, such as the remote location of the workplace and the special difficulty of transportation to the nearest restaurant facilities, which prevent the employee, in practice, from effectively having two hours for lunch. This was stated by the High Court in its judgment of 26 December 2011.
On the other hand, the scope of the obligation is extended for those companies with work centres of 50 or more employees. According to the aforementioned regulations, not only do these companies need to have a dining area but they must also offer a reasonably priced menu to their employees, regardless of the time available to their employees for lunch, or the existence of nearby restaurants.
This obligation does not exclude companies that occupy leased premises where the works necessary to permit a dining room with its own kitchen are prohibited under the agreement, insofar as methods other than the installation of a dining room with a kitchen are admitted in the actual work centre, provided that they fulfil the intended purpose of the regulation.
According to the aforementioned judgments, the objectives pursued by the regulation, adapted to the needs of the workers of the 21st century, would be: (i) to have lunch in the workplace, or in a nearby place, avoiding travel expenses and the stress of having to travel home in a short period of time; (ii) reduce the lunch break and bring forward, where applicable, the time of departure, facilitating the conciliation between work and personal life; (iii) eat at a price lower than that applied by restaurants; (iv) enjoy a healthy, balanced and varied diet, which helps to maintain health and reduce absenteeism.
In accordance with the foregoing, the courts do not admit the existence of a room with vending machines with hot and cold drinks, sandwiches and snacks as a valid alternative to a dining area, not only because the employee assumes the cost exclusively, but because the daily recourse to this type of food does not guarantee a healthy, balanced and varied diet such as the one that the company is obliged to procure.
Furthermore, the hiring of catering companies that provide precooked food on the facilities at a reasonable price or one that is lower than that offered by bars and restaurants has been validated as an alternative practice, or the offering of restaurant cheques to employees.
Finally, it is worth noting that a breach of this obligation could be considered by the Labour Inspectorate as a serious infraction of article 7.10 of the Law of Infractions and Sanctions in the Social Order punishable by fines of up to €6,250.