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Can a company fire an employee who overworks?

| News | Employment Law and Social Security

• Alfredo Aspra explains the legal risk involved for both companies and workers working overtime in a report published by Cinco Días. • The court admits to sanction if overtime harms the company. Lawyers see problems linked to employment risks.

In 2017, the dismissal of a worker from one of a Lidl supermarket branches in Barcelona was announced. The reason, as stated in the letter of dismissal, was that, almost daily, the employee entered work early (sometimes more than an hour in advance) to "prepare the store" without signing. For the company, this was a serious breach of the employment contract, as it violates the rule that "every minute you work, you pay, and every minute you work must be recorded.

Beyond the unusual case that a company punishes an employee for working longer than stipulated, controlling the time of entry and exit of employees is a case that raises, increasingly, the concern of companies. This is due, to a large extent, to the imminent entry into force (on May 12) of the royal decree that obliges companies to record the daily working hours of their workers.

The main objective of the standard is to tighten control over overtime, which goes beyond what is laid down in Article 35 of the Workers' Statute (ET). This provision obliges companies to record overtime worked by their employees and provide a copy of the file to both the employee and the union. It also sets a maximum of 80 hours per year, without considering those that have been compensated with breaks.

This criterion was adhered to by the Madrid High Court of Justice (TSJ) of in determining that the conduct of staying more or less time in the job than stipulated in the contract, may only be punishable "when it has been expressly prohibited and when it results in harm to the company. In this specific case, the Supreme Court of Justice annulled the termination of an employee, as the company did not prove the harm caused by this conduct”.

Also, "for an hour to be considered overtime, it must be authorized by management," says Alfredo Aspra, Andersen Tax & Legal Employment Partner. If the worker wants to extend his working day and receive compensation for it, he must request it from his superior and that he consents to it. If this protocol is not followed, "in principle, the employee would not be entitled to receive remuneration", the lawyer points out. This was recently endorsed by the TSJ of Madrid, rejecting a salesperson economic compensation for the additional time he had worked. In this case, the company's protocol required advance notice of any variation from the normal working day. This implies an express instruction "without it being left to the discretion of the plaintiff to make a schedule beyond the ordinary," the judges said.

However, consent to overtime may be given expressly or tacitly. In this sense, in 2010, the Catalan Supreme Court of Justice ruled that a company should pay for the overtime of one of its workers, even though the latter never asked for it. As the Court argues, the company was aware of these excesses "and did nothing to prevent them. For this reason, it is not a "mere and simple unilateral action of the worker", as the company argued, but it gave its tacit consent.

You can read the full report in Cinco Días or download it from PDF

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