The daily day register, in the court’s sights

The obligation to “clock in” (daily recording of the working day of all employees) has led to numerous court rulings. On the one hand, for non-compliance by companies:

1. failure to register or providing false information;
2. non-payment of overtime, etc.).

and, on the other hand, for non-compliance by workers:

1. payroll deductions for delays,
2. dismissals in teleworking due to non-compliance with working hours…).

What is the obligation of companies?

Apart from the fact that the applicable collective bargaining agreement must be consulted to see if there are any provisions on the recording of the working day, the company is obliged to record the working day of all employees on a daily basis. This record, as expressly established in the regulations, must include the specific start and end times of each employee’s working day.

In addition, the records must be kept by the company for four years and remain available to workers, their legal representatives and the Labour and Social Security Inspectorate.

The Labour Inspectorate has made it clear that the register must be kept on a daily basis, and it is not acceptable to display the general timetable applicable in the company, the working calendar or the timetables drawn up for certain periods.

In addition to this, the time recording has to meet the requirements of “reliability” and “objectivity” in accordance with the ruling of the European Court of Justice, on which the Supreme Court has expressly ruled on the scope of these requirements.

It should be borne in mind that the daily working time record is an essential part of the analysis of, for example, other employment issues or rights, such as the right to digital disconnection, overtime claims, daily rest and rest between working days.

From the CJEU to the SC: the three requirements to be met

Beyond the specific case in question (the trade union’s claim is dismissed), this Supreme Court ruling is particularly interesting because in it the Supreme Court expressly rules on the requirements laid down by the Court of Justice of the European Union to understand that the time recording is valid and that time recording systems must comply with:

• target
• reliable and
• accessible.

In the specific case in question, the Supreme Court reasons that the requirements are met since (in addition to the accessibility and reliability of the system being accredited), as regards the requirement of objectivity, the unilateral declaration of the worker concerned does not at any time invalidate that objectivity.

This is true whether the search consists of activating some kind of mechanical or computerised device, the use of punch cards, the marking of passwords, access with fingerprints, or any other mechanism or tool that may be used for this purpose.

Overtime and non-recording: the burden of proof lies with the company

Companies are obliged to keep daily time records for all their employees. Therefore, if this obligation is breached and the worker claims overtime, the burden of proof lies with the company.

The judgement states that the keeping of time records is a legally established obligation for the employer and cannot be to his benefit, leaving the plaintiff worker without proof of non-compliance with this legal obligation and, therefore, the burden of proof as to the hours actually worked rests with the defendant.

Full-time or part-time worker?

Can the working day register be used to sanction workers, even to the point of disciplinary dismissal? Yes, although what is not possible is a “surprise dismissal”, if the company has not been sanctioning non-compliance with working hours and working time, what it cannot do is “dismiss” by surprise, as dismissal is the most serious sanction that can be imposed on a worker.

Having made this consideration about “surprise dismissal”, it is necessary to start from the fact that time recording is an obligation for the company but operates for both parties, which means that the company can also use it to sanction non-compliance, even to the point of disciplinary dismissal.

We already have several rulings in this respect (penalties, payroll deductions…):

• Delays can be deducted from the payroll. The Supreme Court has expressly ruled that delays in clocking in can be deducted directly from workers’ monthly pay slips.
• Dismissal in teleworking for falsifying clock-ins. The disciplinary dismissal of a worker (teleworking situation) who clocked in hours when he was not actually working was declared to be justified.
• Dismissal of a worker (cleaning sector) for falsifying timetables. Fair dismissal (falsifying timetables, clocking in hours of work that he was not actually doing.

However, with regard to penalising, for example, tardiness or absenteeism, it should be borne in mind that there is no room for “surprise dismissals”. If the employee has not been previously penalised for tardiness and/or absenteeism, disciplinary dismissal is not possible.

On the other hand, if the clocking system is not reliable or has errors and the company fires an employee for non-compliance with the timetable, the dismissal will also be declared unfair. And the fact that the employee does not inform the company of the errors in the system cannot be used as a reason for dismissal, as it is the company’s responsibility to ensure that the time recording system is reliable and works correctly.

If you have any doubts regarding this issue, please do not hesitate to contact us by telephone at Isabel Torre Carazo or by email at itc@btsasociados.com, we will be delighted to help you.