In 2016 the Work Inspectorate launched an intensive campaign to control working time and overtime under which companies have been sanctioned for not recording their workers’ working time. The recent judgment of the Plenary of the Labour Chamber of the Supreme Court (dated March 23, 2017) disagrees with the Work Inspectorate’s criterion and concludes that companies are not legally bound to keep this type of records.
The aforementioned Judgment considers the appeal brought by a financial institution against the pronouncement of the National Audience (dated December 4, 2015) which imposed on the defendant the obligation to establish a system of daily registration of the working time performed by the entire workforce. The conclusion of the Supreme Court is that the literal reading of the legislation does not provide an obligation to record the ordinary working time, but only to keep a record of overtime, when this is actually performed.
To justify its criteria the Supreme Court takes a literal interpretation of the provision (article 35 of the Workers’ Statute) based on its historical precedents and the European regulations. The Court also appreciates that thorough monitoring of the ordinary working day could even imply interference in workers’ privacy and freedom in cases of flexible working hours or remote provision of services.
The ruling introduces an interpretation that is radically contrary to that maintained by the Work Inspectorate, which has hitherto maintained that the absence of a working time record constitutes a serious labour infringement, attracting fines from € 626 to € 6,250 (article 7.5 of the Law on Infringements and Sanctions in the Social Order).
Although the Judgment does not reflect the unanimous opinion of the Plenary and does not dispel all practical doubts arising from this new criterion, this ruling substantially improves the position of companies that have to face similar claims, labour inspections or have to challenge possible sanctions imposed under the criterion of the Work Inspectorate.