Even if the contract says one thing, if your employees have been working a different schedule for years, you cannot change it suddenly without following legal procedure. Do you have employees who have been working a certain schedule for years and now you want to change it? Be careful, this is considered a significant change and must be negotiated legally.
A recent Supreme Court ruling on April 4, 2025, confirmed something very important: you cannot change the working hours without negotiating with the employees if another schedule had already been established.
The case that changes everything
A company in the service sector had its staff hired to work Monday through Sunday, but for years they had only been working Monday through Friday. In 2022, the company decided to return to the full Monday to Sunday schedule, arguing that this was what the contract said and what the client demanded.
What did the Supreme Court say? That this change could not be made without going through the procedure set out in Article 41 of the Workers’ Statute, because a different working day had already been established, even if the contract said otherwise.
¿Qué dijo el Tribunal Supremo? Que ese cambio no se podía hacer sin pasar por el procedimiento del artículo 41 del Estatuto de los Trabajadores, porque ya se había consolidado una jornada distinta, aunque el contrato dijera otra cosa.
When are you making a “substantial change”?
If you change:
- The usual working hours or days (for example, changing from Monday to Friday to Monday to Sunday).
- The working day (reducing it, extending it, changing it from morning to afternoon, etc.).
- The usual place of work or work system (in-person/remote, for example).
Even if the contract says otherwise, if you have been operating differently for years, the change must be negotiated with the workers.
What happens if you don't follow the procedure?
- The change may be declared null and void.
- The worker may refuse to comply and report to you.
- You may end up paying compensation or having to reverse the change
- The Labor Inspectorate could sanction the action.
¿ What should you do in your company?
Before making a major change such as extending hours, changing shifts, or adding weekends:
- Check whether another common practice other than the contract has been established.
- Check whether the collective agreement says anything about working hours.
- Analyze whether there are legal representatives with whom to negotiate.
- Activate the procedure set out in Article 41 of the Workers’ Statute.
- Do so in writing, at least 15 days in advance.
- Listen to the workers’ arguments and document everything.
Check these requirements:
- Does the change affect the working hours, schedule, or usual working days?
- Have they been working a different schedule than the one in the contract for more than 6 months?
- Have I consulted the applicable collective agreement?
- Have I notified of the change in writing at least 15 days in advance?
- Have I followed the procedure set out in Article 41 of the ET?
- Do I have supporting documents and records of the negotiation or consultation?
- Have I informed the workers’ representatives, if any?
Please contact this professional office if you have any questions or require clarification on this matter.
For further information, please consult our Employment Advice service.
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