The Labor Chamber at Spain’s Appellate Court has delivered a widely reported judgment (December 10, 2019), underlining that it is valid to deduct smoking, breakfast or coffee breaks from actual working hours. Beyond this issue, however, two other no less important topics went unnoticed: how to compute the actual working hours of employees who travel as part of their sales activities and what happens when employees work longer hours that do not qualify as overtime expressly authorized by the company. 

The case examined by the National Appellate Court resulted from a claim submitted by a trade union reporting that the working time recording system in place as a result of Royal Decree-Law 8/2019 amounts to a material modification to working conditions in relation to the following three issues:

  1. First it was examined whether smoking, coffee or breakfast breaks should be treated as actual working time. The National Appellate Court concluded that there had not been a more beneficial condition in place before the time recording system started, instead simply a policy of trust in the employee resulting in every employee being responsible for working their stipulated hours, which did not mean that those breaks had to be computed as actual working time, especially if the hours worked by every employee were not checked or monitored. The court concluded therefore that nothing has changed and therefore rejected the existence of a material modification to working conditions.


  1. The second issue was whether actual work performed over and above ordinary working hours must be treated as overtime, even if the employee’s superior has not authorized them. The court concluded that worked hours may only be treated as overtime if they have the consent of both parties. The reasoning behind that interpretation was that, because there is no express covenant, from collective bargaining or widely included in employment contracts, for overtime to be worked, those hours may only be worked by agreement between the parties and the prior authorization of the employee’s superior is how the company gives its consent. In the examined case, the court rejected that any working condition existing before the recording system started had been altered, and therefore there is no material modification to working conditions.


  1. Lastly, the National Appellate Court held that there is no material modification to working conditions as a result of the recording system computing a specific number of hours to determine the working day, regardless of the time actually spent travelling, and it also rejected that a material modification exists as a result of the system determining by default a specific start time for work rather than the actual time the employee’s working day starts where the employee is going to travel and return to their starting point.

These last two issues have been overlooked in the reports on the judgments that have appeared to date.

A careful reading of the judgment, however, creates a doubt as to whether the court is validating, even if indirectly, the absence of overtime if it has not officially been expressly authorized, alongside another as to the validity of time recording systems determining standard or predetermined hours for employees who travel, regardless of the hours actually worked.

It will ultimately be the Supreme Court that can resolve these doubts and answer these questions in the judgment it will deliver on the cassation appeal that will take place in this proceeding but, for the time being, this is a precedent to be well noted.