Is the ‘sandwich break’ compulsory? Here is what the case law says.

During working hours, there are times when we step outside for a moment to take a walk around the block and have a coffee. In Spain, the so-called ‘sandwich break’ is regulated by the Workers' Statute, but if a person prefers not to take that break in order to leave early, what happens? Is it possible? Is it mandatory to take the break? Let's take a look at what a recent ruling on the subject has to say.

Where is the ‘snack break’ regulated?

A ‘snack break’ is a period of time during the working day that is used for rest. It is regulated in Article 34.4 of the Workers' Statute, which establishes the following:

4. Whenever the duration of the continuous working day exceeds six hours, a rest period of not less than fifteen minutes must be established during that day. This rest period shall be considered effective working time when so established or established by collective agreement or employment contract.

In the case of workers under the age of eighteen, the rest period shall have a minimum duration of thirty minutes and shall be established whenever the duration of the continuous working day exceeds four and a half hours.

Therefore:

• If your daily working day exceeds 6 hours, you must have a break of at least 15 minutes.
• This break time can be considered effective working time if established in the collective agreement or employment contract.
• In the case of workers under the age of 18, the minimum break time is 30 minutes and must be provided whenever the continuous daily working day exceeds 4.5 hours.

What if I want to give up my ‘sandwich break’ to go home early?

This is the case that has been analysed by the High Court of Justice (TSJ) of La Rioja. In this case, the break time was not considered effective working time, so it had to be used by the worker to rest. As a result, the employee could not unilaterally decide to leave their workplace and end the working day earlier than established. In other words, the worker did not want to take ‘sandwich breaks’ to rest, because they preferred to continue working and leave work earlier.

However, the company warned him that it was mandatory, in accordance with the provisions of the Workers' Statute, to take a minimum break of 15 minutes when the working day exceeds 6 hours. In the event of non-compliance in this area related to occupational risk prevention, the company could be penalised. For this reason, the company had informed the worker of the need to take the break, but he ignored the employer's instructions, which are also mandatory, as they constitute a normal exercise of his managerial powers and the worker has an obligation to obey them.

The worker repeatedly disobeyed the employer's orders in this regard, and the company warned him in writing on several occasions about his failure to take his breaks. The worker left his job early for nine consecutive days, which was considered a very serious offence and, therefore, grounds for disciplinary dismissal.

The company therefore dismissed the employee, who filed a claim with the labour courts. Finally, the ruling of the Labour Chamber of the High Court of Justice of La Rioja upheld the dismissal on the grounds that the reasons for dismissal, i.e. breach of the employment contract, had been proven.

The grounds for disciplinary dismissal

In the case analysed by the High Court of Justice of La Rioja, one of the grounds for disciplinary dismissal arises, based on breaches by the employee, as regulated in Article 54 of the Workers' Statute, which are as follows:

• Repeated and unjustified absences or tardiness at work.
• Indiscipline or disobedience.
• Verbal or physical offences against the employer or persons working in the company or their relatives.
• Breach of contractual good faith and abuse of trust.
• Continued and voluntary decline in work performance. 
• Habitual drunkenness or drug addiction if they have negative effects on work.
• Harassment on the grounds of racial or ethnic origin, religion or beliefs, disability, age or sexual orientation, and sexual harassment or harassment on the grounds of sex towards the employer or persons working in the company.

In the case we have analysed, we are dealing with a clear case of disobedience at work towards the employer's orders, which are also related to the safety and protection of workers.

Fair dismissal, unfair dismissal or null and void dismissal?

It is the judge who determines and classifies whether a dismissal is fair, unfair or null and void, in cases where the employee claims that the dismissal is unfair. The dismissal is considered fair when the reasons for breach of the employment contract alleged by the employer in the letter notifying the employee of the dismissal are proven. If the reasons for dismissal are not considered proven, the dismissal will be classified as unfair.

On the other hand, dismissal will be considered void when the reason is a cause of discrimination prohibited by the Constitution or by law, or when it results in the violation of the fundamental rights and public freedoms of workers.

It is therefore important to be aware of the regulations and act accordingly in relation to compulsory breaks as employees, in order to comply with the law and the employer's orders.

If you have been dismissed for a breach of contract at work, contact our team of labour lawyers in Madrid so that we can analyse your case and defend your interests.