The Supreme Court has rejected the GPS-based time control system implemented by a company because it is not able to calculate working time in its entirety.

A recent order by the Supreme Court has shed some more light on the characteristics that working time recording systems implemented by companies should have. The context in which the Court expressed its view is related to a scenario prior to the entry into force of the law, but with respect to a company that already decided, in 2018, to implement a record of working time to be able to monitor its employees’ activities. From among the various solutions existing in the market, the company decided to install a tagging system based on GPS technology. The device was placed in the vehicles that were used to provide the service. It was activated at the start of the trip upon leaving the parking lot and deactivated upon returning the vehicle to the parking lot. In this way, the working time was recorded.

The issue arose because, although the system implemented by the company was accurate, it only recorded the period that the vehicle was active as working time. It did not record the working time completed before getting in or after getting out of the vehicle. In this case, before being able to access the vehicles and start the workday, the workers had to get the road map for the workday and the keys to the vehicle. To do so, they had to go to the relevant office. At the end of the workday, they had to do the opposite: upon leaving the parking lot, they had to go to the office and deposit the keys and the road map.

The considerations made regarding the case revolved around the analysis of the compliance and suitability of the record implemented. On the one hand, the Court considered that controlling working time by using GPS technology could, in principle, seem sufficient and suitable for the end pursued. However, since it is not possible to monitor the activity performed outside of the vehicles, it is not suitable for the end pursued. The lack of suitability, in this case, stems from the fact that the system is not able to calculate the working time in its entirety. Specifically, recording working time via GPS excludes the periods prior and subsequent to the use of the vehicle in which it is installed.

Based on these considerations, in its order the Supreme Court held that the ruling by the High Court of Justice of the Basque Country was final. In its analysis of the case, the Court clarified that when employees have to go to the offices to gather documentation, learn the routes or perform other formalities, they are engaging in working time. And this working time cannot be excluded or deducted. Therefore, a control system based on the GPS installed in a vehicle is not suitable for controlling working time.

This broad approach is very useful for establishing a test of legality of recording systems. On the one hand, to pass the test, it would be necessary to see if the system is compliant. That is, does it have the technical capacity to record the working time completed by the company’s workers. On the other, it would be necessary to verify that it is suitable, checking to see if it records all of the working time or if it is configured to exclude part of it. Only records that combine both characteristics can be validated according to this new case law.

In our Summer 2019 Issue of the Garrigues Labor and Employment Digest, we included a basic survival guide for recording working time, with a special section devoted to the recording and adaptation of working time. Given the recent nature of this new legal obligation, there are many questions that remain unanswered. Accordingly, each new ruling makes it possible to more precisely define the limits and criteria to be taken into account. For now, we can note that the principles that are starting to be applied when assessing the validity of systems for recording working time at companies are twofold: compliance and suitability.

In the coming months we expect a significant number of rulings that will further define these criteria, but until that happens and the case law is settled, it seems reasonable to start to apply the test of legality to the systems chosen.

Pablo Salguero

Garrigues Labor and Employment Law Department