Working hours are an increasingly important factor when choosing a job, sometimes just as important as salary. In fact, according to an Adecco survey published in 2022, flexible hours and a good work regime that helps to balance work and family life are essential to achieving job happiness. With this premise, it seems that workers will be happier if the Ministry of Labor, which is negotiating against the clock with social partners, manages to reduce the maximum working day to 37.5 hours in 2025 and ends the current legal limit of 40 hours per week.
Given this foreseeable change, it is worth asking what counts as working time and what does not. The European directive that regulates this issue defines it as any period in which the employee remains at the workplace at the employer’s disposal and in the exercise of his or her activity or functions. However, in practice it is more difficult to define. “The classification depends on each specific case and is subject to what the company and workers may have previously agreed,” says Ana Gómez, partner in the labor area of Ceca Magán Abogados. For this reason, says Alicia Moro, partner at Sagardoy Abogados, the high-profile ruling by the Supreme Court last March, which recognized that the breakfast break and the 15 minutes of courtesy to clock in count as effective working time, only has effects for the staff of CaixaBank, which is the company over which the conflict was resolved.
Some of the situations in which employees are not carrying out their activity, but are usually included as working time in company agreements, are: going to the bathroom during the working day; taking professional training imposed by the employer; breaks for breakfast, lunch or smoking, or rest during the working day when it exceeds six hours. However, Ana Gómez warns, “if these situations are not regulated in a collective agreement or agreement, nor are they individually agreed with the workers as effective working time, the general rule is that they are not considered as such.”
Likewise, warns María Orio, partner at Abdón Pedrajas Littler, we must also differentiate between effective working time and on-call time, which is “the time in which the employee remains at the employer’s disposal in anticipation of carrying out his or her work activity”, that is, on call. In this sense, the Supreme Court, in a ruling from March 2023, has indicated that, if the worker during his or her on-call period can manage his or her time and dedicate himself or herself to his or her own interests without major limitations, this period will not be considered effective working time.
Therefore, periods of on-call duty will only count towards the working day if, as Alicia Moro indicates, “the worker is obliged to be physically present at the place determined by the employer and to remain at the employer’s disposal in order to provide his or her services immediately in case of need, or if, despite being at home, he or she is required to attend to carry out his or her duties within a short period of time.”
Inequalities
The company can also establish that certain breaks are working time for some employees, but not for others. “This is possible as long as the unequal treatment is based on an objective and reasonable justification,” explains Alicia Moro. The lawyer explains that a company can establish differences in this regard between employees with fixed or rotating shifts, or between those who work full-time or part-time. It can also be established between teleworkers and on-site staff, although in this case, María Orio points out, according to a Supreme Court ruling from September 2023, breaks to attend to physiological needs, time spent eating or resting from visual fatigue for remote workers will also be working time, if they are for on-site employees.
On the contrary, establishing that certain breaks are or are not effective working time depending on the date of entry of the employees into the company would be a discriminatory criterion, as stated by the National Court in a ruling of February 2024. “This does not prevent,” clarifies Ana Gómez, “the company from regulating working hours by individual agreement with the workers, depending on their circumstances, as long as it does not worsen the conditions recognized in the collective agreement or pact.”
What if the company decides that what was previously effective working time is no longer so? In this case, says María Orio, it will be necessary to analyse the nature of this concession to determine how it could be withdrawn. “Only if it is a mere tolerance will the company be able to unilaterally remove it. However, if it is a more beneficial condition or a right acquired or recognised in a contract or agreement, the company cannot alter it on its own and must resort to the procedure for substantial modification of conditions,” explains the lawyer.
In any case, which breaks or situations are working time and which are not, and how long they last, are aspects that employees should be aware of, since, as Alicia Moro points out, “excessive breaks are equivalent to a lack of punctuality such as being late for work and, therefore, punishable.”
The consequences could range from a verbal or written warning to suspension from employment and pay for several days or even disciplinary dismissal, if it is classified as a very serious offence.
Remote work
The Supreme Court, in a ruling in September 2023, confirmed that the working conditions of teleworkers cannot be worse than those of those who work in person. Specifically, the High Court declared that the company cannot deduct from its teleworkers the time lost due to a power or internet outage, as it does not do so with respect to on-site employees if they suffer connection problems in their facilities. And, as Ana Gómez, labor partner at Ceca Magán, points out, these incidents are considered effective working time.
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