The maximum annual working hours in Spain are 1826 hours per year or 40 hours per week, pending potential legislative changes that could modify this. It means that the actual working time for employees should not exceed this limit, and any time worked beyond this or that established in the applicable collective agreement (if lower) is considered overtime.
Given this regulation, it is crucial to determine what constitutes actual working time in Spain, especially in situations such as travel time, breaks during the workday, presence times, and shifts.
Travel time
Travel poses numerous issues for companies regarding their calculation of actual working time. Extensive jurisprudence has determined that time commuting from home to the usual workplace does not qualify as actual working time.
The Supreme Court (TS) established in 2021 (STS 316/2021, January 26) that during travel time (understood as the time from the worker’s usual residence to the workplace), the worker is performing a preparatory task, considered routine and necessary to access the workplace and therefore does not count as actual working time.
However, a different and more controversial issue arises regarding travels to other locations under the company’s directive.
The Doctrine of the European Union
Firstly, regarding the Doctrine of the European Union. Directive 2003/88/EC of the European Union defines two distinct concepts: rest time and working time. Working time is considered any situation in which workers are at the employer’s disposal, regardless of the intensity of their activity.
The only judgement to date from the CJEU (Judgment of September 9, 2015, Case 266/14) on workers without a fixed workplace indicates that the fact of not providing services during travel does not imply that it is not working time since workers are at the employer’s disposal: During these travels, workers are subject to the instructions from their employer, who can change the order of clients or cancel or add an appointment. In any case, during the necessary duration of the journey, which in most cases cannot be reduced, these workers cannot freely dispose of their time and dedicate themselves to their own business, so they are at the disposal of their employers.
Spanish Jurisprudence
In contrast, Spanish jurisprudence has been more clear. The judgment of the Supreme Court, Social Chamber (STS 6495/2000 of September 18, 2000) states: The initial premise is that the time spent on travels between the arms depot and the centre where the security guard provides services is considered working time. That is because such travels are not the typical commute from home to work and back, but determined by a duty imposed by the company in consideration of service needs or conveniences.
Thus, according to Spanish jurisprudence, the time a worker is at the employer’s disposal, including travels outside the usual workplace to perform other services or projects, is considered actual working time.
Breaks during the workday
Article 34.4 of the Workers’ Statute mandates that if the daily continuous working period exceeds 6 hours, employers must establish a rest period, commonly known as a lunch break, lasting no less than 15 minutes.
This time is considered actual working time if stipulated by the collective agreement or employment contract or if the company grants this benefit to the workers, becoming an acquired right. If the lunch break cannot be taken due to the nature of the activity, the time spent working through it counts as additional to the regular working day. This time must be compensated, but it is not classified as overtime because it is already included in the total annual working hours agreed upon (Judgment of the Supreme Court dated November 12, 2015, appeal 14/2015).
Attendance and On-call times
The difference between attendance and on-call times is that the former requires workers to be available to the employer at a designated place, and during on-call time they have freedom of movement and only need to be reachable.
- Attendance time: Obliges the worker to be available at a specific place designated by the employer.
- On-call time: Allow the worker freedom of movement, requiring only that they remain reachable.
Consideration of working time
For on-call times, a comprehensive assessment of each case’s circumstances must be made, such as the timeframe in which the worker must report, if required, the frequency and duration of interventions, and their consequences. If workers cannot freely dispose of their time during the guard period, the entire guard is considered actual working time. If they can manage their time freely, only the time spent on actual interventions is considered actual working time. Nonetheless, guard times must be compensated accordingly.
Due to the complexity of issues related to working time, we recommend that companies implement an updated policy regulating all possible scenarios. It will help to avoid conflicts and uncertainties among workers.
If you have any questions regarding the actual working time of your employees in Spain or if you wish to develop a policy in this regard,
If you have any questions regarding the actual working time of your employees in Spain or if you wish to develop a policy in this regard,
