Can an employee refuse to work overtime?

“Can an employee refuse to work overtime?” is one of the most common questions any HR manager faces when a workload peak arrives. The short answer is yes, as a general rule they can refuse, because overtime is voluntary. But there are exceptions, limits and a correct way to manage it so you don’t end up with an unfair dismissal. We explain it from the company’s point of view.

Quick answer

Situation	Can the worker refuse?
Ordinary overtime (voluntary)	Yes. They cannot be forced or penalised.
Agreed in a collective agreement or contract	No, within the legal limits.
Force majeure (accidents, urgent damage)	No. It is mandatory.
Part-time worker	Except for force majeure, they cannot work it (it would be complementary hours).
Under 18	Prohibited in all cases.

Overtime is voluntary (general rule)

Article 35.4 of the Workers’ Statute is clear:

“The provision of work in overtime shall be voluntary, unless its performance has been agreed in a collective bargaining agreement or individual employment contract, within the limits of section 2.”

In other words: if an employee has not agreed to work it, they are within their rights to refuse and the company cannot force them or take reprisals. Refusing voluntary overtime is not a workplace offence.

The three exceptions where it is mandatory

1. Agreed in a collective bargaining agreement. Many sector-wide agreements establish the obligation to work a certain number of overtime hours. If that is your case, the worker must do it within the legal limits.

2. Agreed in the individual contract. If the contract expressly provides for overtime, it can be required.

3. Overtime due to force majeure. The hours needed to prevent or repair accidents and other extraordinary and urgent damage (art. 35.3 of the Workers’ Statute) are mandatory, do not count towards the annual cap and have their own treatment. You cannot invoke “force majeure” for a spike in orders: it has to be an unforeseeable and urgent event.

The legal limit: 80 hours per year

Article 35.2 of the Workers’ Statute sets a ceiling of 80 overtime hours per year. With two important caveats:

• Overtime compensated with time off within the 4 months following the work does not count towards that limit.
• Hours worked due to force majeure do not count either.

The limit is prorated for part-time contracts or those lasting less than a year.

Paid or compensated?

The collective agreement or the contract decides. In the absence of any agreement, the law understands it to be compensated with equivalent time off within the following 4 months. In no case can the value of an overtime hour be lower than that of an ordinary hour.

If you prefer to manage excess working time as flexibility rather than overtime, you may be interested in the hour bank, which spreads working time irregularly without generating overtime, as long as the 10% annual limit is respected.

What the company CANNOT do

This is where most companies go wrong:

• It cannot penalise anyone who refuses to work voluntary overtime.
• It cannot dismiss for that reason. A dismissal like this is declared unfair, and if a breach of rights is proven, void.
• It cannot pressure anyone or make improvements, shifts or renewals conditional on the worker accepting voluntary overtime.

The correct way to secure availability is not to impose it, it is to agree it (in a collective agreement or contract) within the legal limits.

Overtime, complementary hours and the hour bank: don’t confuse them

• Overtime: above the agreed ordinary working time. Voluntary unless agreed. Cap of 80/year.
• Complementary hours: exclusive to part-time contracts, they must be agreed and have their own regulation.
• Hour bank: this is not overtime, it is the irregular distribution of working time (up to 10% a year) that is offset within the year.

How to document it properly (and why it protects you)

Whether overtime is voluntary or agreed, the company has the obligation to record daily working time and total the overtime, informing the worker and the legal representatives.

And here is the key point for the company: in a dispute over overtime, without a reliable record the burden of proof works against you. The courts have been accepting the worker’s version when the record is non-existent or open to manipulation. We analysed this in the case of the Supreme Court ruling on the burden of proof for overtime and in how digital records protect the company against claims.

A time-tracking software like Cleverfy:

• Records the actual clock-in and clock-out time, with an unalterable timestamp.
• Separates ordinary hours from overtime and totals them each month.
• Keeps a record of whether they are paid or compensated with time off.
• Generates the report ready for the Labour Inspectorate or to respond to a claim.

With the new Royal Decree on time tracking on its way, that record will also have to be digital and unalterable.

Conclusion

An employee can refuse to work overtime provided it is voluntary, and the company cannot penalise them for it. It can only be required if it has been agreed in a collective agreement or contract, or if it responds to force majeure. The sensible route for the company is not to impose it, it is to agree availability within the legal limits and document every hour with a reliable record, which is what protects you if a claim ever arises.

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Legal note: informative article, does not constitute legal advice. Based on articles 34 and 35 of the Workers’ Statute. Collective bargaining agreements may set out specific conditions; check yours before making decisions.

Sources:

• Workers’ Statute, Art. 35