Sending emails outside business hours would not credit overtime work

The sending of emails between workers and their employer outside working hours would not prove that they are working overtime, according to a recent ruling by the Superior Court of Justice of Madrid.

The Court argues in judgment 6684/2023 that The sending of these emails does not reflect an effective and continuous work by a worker.

“There is no evidence in the proven facts that there is an exchange of emails, between the plaintiff and the company, which obliges her to send the emails indicated in the hours that are recorded. From them it can only be deduced that she sent those emails at the time she says, but not that she carries out activity in the time that elapses between the different emails.”, says the Court.

In that sense, The Spanish court ruling makes it difficult for workers to prove the existence of overtime work. But, how does this ruling impact Peru?

The Peruvian situation

Today, emails sent outside working hours are considered important evidence by Peruvian courts to demonstrate the possibility that a worker has been working overtime.

As explained German Lorapartner of the Damma studio, “It has always been considered that sending an email can be proof of overtime”.

The lawyer emphasizes, then, that “With this position raised by the Spanish court, it could be argued that there are no overtime since work done is not demonstrated.”. The lawyer adds that it would be possible to cite this resolution when debating a case in Peru.

“I could go to a court and tell them that the fact that I send an email does not necessarily represent the performance of a job and European jurisprudence has already established that.Lora points out. In this sense, the Spanish ruling would serve for future discussions on the subject in Peru.

The internal work regulations

As explained Helga Irazolaassociate of the Rebaza study, the companies they usually establish in their internal work regulations that all overtime work must be expressly approved by the employer.

This makes it impossible for a worker to claim that there was overtime work given the existence of indications of it.such as sending mail after the workday is over.

The lawyer indicates, however, that “If a company does not have any policy in this regard, it is a little more difficult to have that control.”, case in which it would begin to apply the criterion mentioned above.