Tracking attendance is a topic that has been widely discussed in the press since Royal Decree 8 of 8 March 2019, amending Article 34 of the Spanish Labour Relations Act (ET) by adding a new section nine by virtue of which the obligation was stipulated that all companies must install such systems.
Although case law on this matter is becoming more and more consolidated, the real situation is that, due to the insufficiency of the regulation in determining the minimum contents of attendance tracking, we are faced with a large number of different systems and thus many judgements that analyse such attendance tracking systems.
This is the case of the judgement of the National Court of 19-4-22, Appeal 39/2022, which analysed the characteristics of the attendance tracking system used by a banking institution.
What happened in that specific case?
Among all the characteristics of the attendance tracking system used by the institution in question, the plaintiff trade unions claimed that the workers’ right must be acknowledged for the following:
- The attendance tracking system used contains traceable information and, hence, the workers’ representatives must be informed of each of the changes made to the records included in them and when such changes took place.
- A record must be provided of the entry of non-working breaks and the time taken.
- The automatic nature of the system used must be eliminated because, by means of this, it was considered that, by default, the time that exceeded the time after the worker left his/her work was calculated as personal time in the system.
- The authorisation a posteriori of the worker’s superior must be eliminated so that the self-recorded time was the one that was actually included in the tracking system.
- The worker’s identity (full name), province and town/city corresponding to each entry must be provided.
What was the ruling of the National Court?
The National Court dealt with these issues and provided clarification about the limitations both of the workers’ representatives’ rights to information and the contents of the attendance tracking system.
Regarding the first petition submitted by the trade unions, related to the records containing traceable information and that the workers’ representatives must be notified of all the changes made, the National Court was quite clear when it deemed that the information the workers’ representatives were entitled to receive was that referred to in both the Spanish Labour Relations Act and the Collective Bargaining Agreement; therefore such petition was dismissed, in any case they were entitled to the possibility to access the data stored by the operator of the software used.
Moreover, regarding the record of breaks and the time taken for them, using reasonable logic, the National Court deemed that a system in which the beginning and end of the working day is recorded and that also records the so-called personal time fulfils the purpose of being able to inform the workers’ representatives and the labour authorities of the time of the breaks taken by each of the workers during their working hours and hence dismissed the petition submitted by the trade unions.
The third and fourth petitions are the ones that could be of the greatest interest from a business standpoint, since they deal with how overtime must be regulated through the attendance tracking system.
It should be mentioned that the system analysed recorded all the hours that exceeded the ordinary working day and automatically catalogued them as personal time, requiring approval afterwards by the worker’s hierarchical superior in order to be considered overtime.
In this respect, the National Court was transparent when dealing with this issue. Recalling its judgement of 10-12-19 and Article 35 of the Spanish Labour Relations Act, it expressed that, although it is valid that working overtime is prohibited without the company’s express authorisation, it deemed that a system requiring their being recorded to be authorised by the company lacks any credibility whatsoever and hence dismissed the petitions submitted by the plaintiff.
Lastly, regarding the petition related to providing the identity, province and town/city, although it referred to the Worten judgement (Judgement of the CJEU 30-05-13), which considered that the workers’ data included in the attendance tracking system implied personal data, the National Court admitted the petition due to considering that, by developing Article 34.9 of the Spanish Labour Relations Act, the parties agreed that the company would provide the attendance tracking of the company’s workers to the workers’ representatives every month and the legal provision that develops the agreed regulation has a clear purpose that is simply to assist in the supervisory and control duties included in Article 64.7 a), and it would be detrimental to such supervisory and control duties if the workers’ representatives were not informed of the worker’s identity that each specific working day record referred to.
What can we expect in the future?
The judgement analysed above is of great interest, not only due to the fact it clarifies various issues related to attendance tracking, but also because it conducts an interesting review about the latest case law on this matter.
However, as we have already mentioned, there is an endless number of possible systems available for attendance tracking. Although each specific case must be considered to a certain extent, these kinds of judgements provide guidelines to companies about the limitations when deciding on the system they will use or to check whether or not the system they currently use is in accordance with the rulings of Spanish courts.
In fact, further doctrine seems to be provided related to attendance tracking as each judgement is ruled, which certainly needs to continue to be developed, and makes it important to be attentive to future judgements, which we will keep you informed of as soon as they are ruled!
Author: Guillermo Guevara, lawyer at RSM Spain