A Spanish court recently upheld the dismissal of an employee who repeatedly arrived at work well before her scheduled starting time, despite being instructed not to do so. The case raises a broader question: are employees free to decide when they begin working?
Speaking on RTL, lawyer Jean-Jacques Schonckert explained that working hours are normally specified in an employee's contract and must, in principle, be respected. He added that some contracts allow working hours to be adjusted according to the needs of the business.
In the Spanish case, the employee repeatedly arrived and clocked in much earlier than scheduled. According to Schonckert, she was not contributing to the company's productivity during that time but later wanted it to be recognised as working time.
Schonckert said her employer had repeatedly instructed her not to arrive before her agreed starting time. He added that the case also appeared to involve workplace security concerns.
After several warnings, the employee was dismissed and subsequently challenged the decision in court. According to Schonckert, the court upheld the dismissal because she had repeatedly disregarded her employer's instructions and the organisation of the workplace.
Schonckert said he had not found a comparable case in Luxembourg. In such a dispute, however, he explained that a Luxembourg judge would examine the specific circumstances rather than apply a general rule automatically.
According to Schonckert, relevant factors would include how often the employee arrived early, whether they had previously been warned, and whether they had deliberately continued to disregard their employer's instructions.
He said written warnings would be particularly significant. If an employee repeatedly ignored clear instructions despite receiving formal warnings, Schonckert explained, this could potentially justify dismissal with notice or, in more serious circumstances, dismissal without notice.
He added that, where a dismissal was found to be justified, the employee would not be entitled to damages for wrongful dismissal.
Schonckert stressed that the central issue would not simply be that the employee had arrived early. Rather, a court would consider whether they had failed to respect the company's rules, operational needs, and workplace organisation, he said.
Schonckert nevertheless stressed that arriving early or staying later is not usually a problem where an agreement exists between the employer and employee.
He explained that, even where fixed working hours are written into a contract, the parties can agree on more flexible arrangements. An employer may, for example, allow someone who starts earlier to leave earlier.
For Schonckert, the decisive factor is communication and mutual agreement.
"Talk to one another, not about one another", he said, describing dialogue as essential in the workplace.
