Working time record keeping, the right to disconnect and the regulating role of the law

Over recent years various provisions have been introduced into Spanish law in relation to both working time record keeping and monitoring, and to the so-called right to disconnect. The National Appellate Court had supported the obligation to keep working time records, an obligation that was denied by the Supreme Court until in Royal Decree-Law 8/2019 the legislature added paragraph 9 to article 34 of the Workers’ Statute, requiring companies to ensure that records are kept of daily working hours, including the exact start and end times of the working day.

At a later date to that amendment of the legislation, the Court of Justice of the European Union (CJEU), in response to a reference for a preliminary ruling submitted by the National Appellate Court (in an at least unusual move to rebel against the principle set by the Spanish Supreme Court), held, in a judgment dated May 14, 2019, that member states  must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured, although it leaves it to the discretion of those same member states to determine the specific arrangements for implementing the system, having regard to the particular characteristics of each sector of activity, or even of each business, such as its size. In keeping with this last point (when the amendment of the legislation was made the advocate general's conclusions that preceded the judgment had been published), article 34.7 of the Workers’ Statute sets out that the Government may lay down “specific provisions on the obligations to keep working time records, for any sectors, jobs and professional categories which due to their particular characteristics so require”. And all of this is “without prejudice” to the flexible working time arrangements that are enshrined, among others for reasons relating to reconciling work and family responsibilities, in that same article 34 of the Workers’ Statute.

The Government has not passed legislation either on the particular characteristics that record keeping may have in certain cases (including for certain “professional categories”), nor has it been clarified how the record keeping obligation cannot prejudice flexible working hours. It will have to be determined what terms and scope those flexible hours will have to comply with to allow a different record keeping system to that described, as a general rule, in article 34.9. In their absence, the approach to working time record keeping (in Spanish law and in the CJEU judgment, which has again used the trump card relating to protecting health and safety at the workplace to act in relation to matters that should fall within the powers of the member states) seems clear and precise, but it is simplistic and hard to reconcile, because of its simplicity,  with the current complex and diverse characteristics of the system of production, with the conditioning factors of the organization of work and with the growing influence that information technology is having.

All of this explains the relative failure of the goals of the reform (to control and reduce overtime) and the difficulties with interpreting how they need to be implemented. As things stand, there has been judicial support for record keeping systems to require workers to record absences (so that they are not measured as actual hours worked: national appellate court judgment dated November 10, 2019); for the company’s authorization to be needed to extend working hours (national appellate court judgment mentioned above) or work overtime (national appellate court judgment dated March 31, 2021); for record keeping based on self-reporting by workers to be allowed (national appellate court judgment dated December 2, 2020); and for it is valid to allow a half-hour “correcting factor” for uninterrupted working days or two hours for split working days in the measured time, to cover break periods or periods of no actual work (supreme court judgment dated April 5, 2022).

It has been rejected in the case law that the hours reported on timekeeping systems activated by the workers themselves always have to be considered overtime, where remote working is involved (Galicia high court judgment dated March 8, 2022, delivered by the La Coruña court). However, an employer’s authorization given after additional hours of work reported as such were worked has been held unlawful, and workers have been required to be identified on records produced to the workers’ representatives (national appellate court judgment dated April 19, 2022).

There are no simplistic answers to (increasingly) complex scenarios. The legislature should not try to legislate with principles that are also uniform because not even the specific characteristics contemplated in the law itself have been implemented, which are very diverse scenarios and in many of these a conventional “clocking in and clocking out” (or start and end time) record keeping system makes no sense. And where collective bargaining has attempted to provide detailed rules it also has given rise to complex legislation with overly elaborate procedures and excessive red tape. Look no further than the banking collective labor agreement or the working time record keeping agreement at a bank which are dealt with in the national appellate court judgment mentioned above, dated April 19, 2022.

This same approach, after the necessary adjustments and additions, may be adopted in relation to the “right to disconnect”. If we examine article 88 of Organic Law 3/2018 of December 5, 2018, the right to disconnect it proclaims cannot be more vague: that right is affirmed “in order to safeguard, outside the working hours established by law or collective bargaining, respect for employees’ breaks, leave and holidays, as well as their personal and family privacy”. Writing a right into law and determining how it is applied are two very different things however and so in relation to how this right is to be exercised the legislature defers first to collective bargaining (or to an agreement with the workers’ representatives) (article 88.2 LO 3/2018), and then to a decision by the employer, after hearing the workers’ representatives (article 88.3). Leaving aside this contradiction, no further progress has been made either in relation to the specific arrangements. It is only mentioned that the right to reconciliation of work and private and family life has to be reinforced and in particular the right to disconnect has to be preserved “in cases where all or part of the employee’s work is performed remotely or from the employee’s home in relation to the use of technological tools for work purposes”.

Moving to collective bargaining, a good example is the agreement on remote working and other flexibility mechanisms at Telefónica Servicios Audiovisuales SAU, published by Decision dated April 22, 2002 of the DGT in the Official State Gazette on May 12, 2022. In the fourth paragraph of point 2.10, it simply reproduces the legal mechanism, with no further additions than a reference to the company’s internal regulations and any agreements that may have been achieved. And paragraph 6 of point 2.16 once again reproduces the legal mechanism, adding that the right is “without prejudice to any exceptional scenarios set out in the applicable legislation”.

Neither the forms of exercising the right to disconnect nor the terms on which it has to be exercised are inferable from either the law or the agreement. And this shows, even more clearly than in relation to working time record keeping, the limits within which the law (and collective bargaining) is able to act. It is illusive to seek to provide detailed rules on such complex and diverse issues. We have to be aware of the limits of the law. It should probably be enough to make a general proclamation of the type contained in Organic Law, and to rely on the workings of employment relationships along with the individual and especially the collective counterweights operating in them. That general proclamation can serve as an interpretation principle when confronted with the types of disputes that may arise over that right to disconnect and are impossible to foresee in detail.