I’ve forgotten to clock in a few times: what might happen?

The company can dismiss you, but the dismissal can be considered unfair. It may happen that you forget to clock in and out for several consecutive days when arriving and leaving work; however, although there is an obligation to do so, it is not a cause for dismissal in all cases, and it will be the judge who determines whether the dismissal is fair or unfair. In this article, as expert dismissal lawyers, we analyze a recent ruling by the High Court of Justice of Catalonia on a case of this type. 

Is it mandatory to record the working day? 

Yes, it is an obligation regulated in Article 34.9 of the Workers' Statute, which establishes that companies shall guarantee the daily record of the working day, which must include the specific start and end times of the working day of each worker, without prejudice to the flexible working hours established in this article.

Through collective bargaining or company agreement or, failing that, the employer's decision after consultation with the legal representatives of the workers in the company, this working day record will be organized and documented.

The company will keep the records referred to in this provision for four years, and they will remain available to the workers, their legal representatives, and the Labour and Social Security Inspection.

It is clear that the company has an obligation to record the working day, but what about the worker? What obligation do they have regarding clocking in? Generally speaking, based on Article 5 of the Workers' Statute, the worker has the obligation to comply with the instructions given by the employer as a result of their management power. Therefore, if the company has implemented a clock-in system to record the working day and has indicated how and when to use that system, the act of clocking in is a work instruction, so failing to comply with it repeatedly constitutes a contractual breach by the worker. 

Can a worker be dismissed for not clocking in? 

Yes, the company could dismiss the worker if it is a repeated action and if the company has previously warned or sanctioned the worker for that reason. 

However, in cases where the clock-in has been falsified by the worker—for example, asking a colleague to clock in for them—the company can directly dismiss the employee. 

These cases can fall under various scenarios regulated by the Workers' Statute as grounds for dismissal: 

• The breach of contractual good faith. This can happen, for example, when a worker clocks in and leaves the company, meaning they are not working when they are supposed to be. 
• Repeated and unjustified absences or lateness. In this scenario, clocking in is used to cover up delays or absences from work. 
• Indiscipline or disobedience. This would apply when the employee refuses to clock in. 

But we must look not only at what the Workers' Statute says, but also at what the collective bargaining agreement states, because it can establish what is considered a minor, serious, or very serious misconduct, how many times it must be repeated to fall into each category, and what sanction corresponds to each type of offense. 

What if I forget to clock in? 

An occasional oversight can happen and, in that case, may lead to a warning, for example, but it does not in itself justify a dismissal, which is the most severe sanction. 

What do the courts say about the obligation to clock in?

In some cases they consider the dismissal fair, and in others, unfair. We look at it below: 

The High Court of Justice of Catalonia recently analyzed the case of an employee who was on medical leave, then on vacation, and when he returned to work, stopped complying with his obligation to record his working day at the company for approximately one week. The company decided to dismiss him.

The worker sued the company, and the first ruling upheld the dismissal. Subsequently, an appeal for reversal was filed before the High Court of Justice of Catalonia, which assessed the manner in which the dismissal took place, as there was no evidence of prior warnings from the company to the worker for breach of the time record.

Therefore, the dismissal is declared unfair, and the company is ordered to reinstate the worker or compensate him. 

The High Court of Justice of Galicia analyzed a case where the worker did not clock in but had been warned on two occasions. In this case, the court declared the dismissal fair since there were prior warnings and sanctions by the company to the worker. 

Another case analyzed by the High Court of Justice of Madrid declared the dismissal fair since the worker clocked in remotely while their work was strictly on-site. The court declared the dismissal fair after cross-referencing the clock-in records with system access logs. 

In another case analyzed by the High Court of Justice of Castilla-La Mancha, a supermarket worker accumulated six time-recording breaches in a month, and the applicable collective agreement considered 5 instances of lateness in a month as a very serious offense. The High Court declared the dismissal fair due to the repetition of the breach in a short period of time. 

The important thing: that the company grants a prior hearing to the interested party

Since the famous ruling of November 18, 2024, by the Supreme Court, it is necessary for the company to communicate the facts to the worker before dismissing them so that they have the opportunity to defend themselves. In this sense, the hearing for the worker must take place prior to the delivery of the dismissal letter; the employer must explain the specific facts imputed to the worker and give a reasonable period to respond. Furthermore, the company must keep a record of this entire process. 

In short, if you have been dismissed for not clocking in, it is important to have your case reviewed by expert dismissal lawyers so they can analyze it. 

Contact us and we will advise you.