Lunch break: when it counts as working time according to Spain's Supreme Court

Spain’s Supreme Court has made something crystal clear that many employees already suspected: if during your lunch break you’re still glued to the company phone, answering messages, or available for incidents, that’s not a break. That’s work.

Ruling 4159/2025 establishes that the lunch break must count as effective working time when the employee cannot fully disconnect.

What the ruling actually says

The Social Chamber of the Supreme Court makes it clear in point six of the decision:

“Si se garantiza la desconexión total de las personas trabajadoras durante la hora de interrupción de su trabajo para comer, dicho periodo de ninguna manera puede ser considerado como tiempo a disposición, sino que será tiempo de descanso. A sensu contrario, cuando la empresa no pueda garantizar la desconexión total, dicho periodo debe computarse como tiempo a disposición.”

(Translation: If the total disconnection of workers is guaranteed during the hour of interruption for lunch, that period cannot in any way be considered as time at the employer’s disposal — it is rest time. Conversely, when the company cannot guarantee total disconnection, that period must count as time at the employer’s disposal.)

The key isn’t what the schedule or the collective agreement says. The key is what actually happens in practice.

When it applies and when it doesn’t

The break IS working time if:

The employee must carry the company phone
They must be reachable to handle incidents
They cannot leave the workplace during the break
They keep answering emails or messages “just in case”

The break is NOT working time if:

There is total disconnection: the employee can go wherever they want, without company devices, with no obligation to respond
The company actively guarantees that disconnection

Who is most affected

This ruling has practical implications in sectors where permanent availability is the norm:

Retail and hospitality — Managers who don’t disconnect from the walkie-talkie or the store’s WhatsApp group during breaks
Security and surveillance — Staff required to remain on-site
Healthcare — On-call professionals who eat at the hospital
Offices — Workers who keep answering emails during lunch “because it’s urgent”
Logistics — Drivers or warehouse staff who must remain reachable

What your company needs to do now

1. Decide whether you guarantee total disconnection

If during the break your employees can leave, turn off the company phone, and not handle anything → the break is rest time and doesn’t count as working hours.

If you can’t guarantee that → the break must count as effective working time.

2. Configure your breaks correctly in your time tracking software

This is where time tracking becomes critical. Your system must distinguish between breaks that count as working time and breaks that don’t.

In Cleverfy, each break type is configured with:

Is it compensable? — Whether the break counts as effective working time or not. This is the field that makes all the difference after this ruling.
Break type — Lunch, rest, other. Or custom types you define yourself.
Minimum and maximum duration — To ensure breaks match what’s been agreed.
Requires comment or justification — Traceability for why the break was taken.
Notifications — Automatic alert to the supervisor if a break exceeds the allowed time.

3. Document your disconnection policy

It’s not enough to decide — you need to document it. And remember that not having a time tracking system is a serious infraction with fines from €625 to €7,500. Article 88 of Spain’s Organic Law 3/2018 (LOPDGDD) already requires companies to have an internal digital disconnection policy.

With the new Digital Time Tracking Royal Decree and this ruling, that policy becomes even more important: if there’s no documented disconnection policy during breaks, it will be hard to argue that the break was “real rest.”

The “coffee with email” problem

Many companies fall into a grey area without realising it. Nobody explicitly says “don’t disconnect,” but company culture means nobody turns off their phone. The WhatsApp group stays active. Emails keep coming in. And the employee feels they have to respond.

According to the Supreme Court, that’s not a break. It’s time at the employer’s disposal. And it must be paid.

The solution isn’t just legal. It’s operational: your time tracking system should reflect what actually happens, not what the schedule says.

Frequently asked questions

Does this ruling create a new obligation?

Not exactly. What it does is interpret Article 34 of Spain’s Workers’ Statute and clarifies that reality prevails over what the schedule says. If there’s no real disconnection, there’s no real break.

Can my employer demand that I don’t disconnect during my break?

No. If they require you to remain available, that time is effective working time. If they demand it but don’t pay for it, you could claim the difference as overtime.

How do I track breaks correctly?

With a system that differentiates compensable breaks (working time) from non-compensable breaks (real rest). When clocking a break, the type determines whether it’s deducted from the effective working day or not.

Does it apply to all sectors?

Yes. The ruling sets general case law. It affects any company where the employee doesn’t enjoy total disconnection during breaks, regardless of the sector or collective agreement.

Try Cleverfy free for 14 days — Configure break types, define whether they count as working time, and comply with the ruling from the very first clock-in. For a complete overview of Spain’s time tracking regulations, check our complete guide to time tracking for SMEs.

Legal notice: This article is for informational purposes only and does not constitute legal advice. Consult a labour lawyer for the specific implications for your company.

Sources: El Periódico, La Razón, El Español, Europa Press