The anatocism or compounding of work breaks

I have allowed myself to use the term anatocism, referring to unpaid interest on a loan, which is compounded on the capital sum and creates new interest (article 1249 of the Civil Code), because it helps understand the excesses of a judicial doctrine (encouraged, nevertheless, by rules that increasingly propagate protection of cases of inactivity at work and dilute the differences between the effective performance of work and absence of benefit) in which the idea is gaining ground that breaks from work create, at least in certain cases, new breaks. A recent example is the judgment by the Supreme Court (Labor Chamber), dated January 26, 2026 (number 62/2026, appeal 205/2025), which holds that the parental leave under article 48 bis of the Workers' Statute must be treated as effective working time for the purposes of accruing vacation. The balance between working time and inactive time is extremely delicate and brings into play the defence of productivity referred to in article 38 of the Spanish Constitution (SC), on the one hand, and the protection of health and safety of the workers and their right to rest (article 40.2 SC) and to a work-life balance, on the other. In order to achieve a balance between the two, collective bargaining must play a fundamental role, which can be clouded by excess judicial control over what has been agreed in collective agreements.

In this context, although the issue raised does not relate exactly to creating new breaks for the breaks taken, the supreme court judgment of April 30, 2025 (number 372/2025, appeal 113/2023), which is giving a host of interpretative doubts over its application, is very relevant. It questions whether workers with work shifts from Monday to Sunday, and a rest day between Monday and Friday, are entitled, in the event that their allocated rest day coincides with a public holiday, to take their rest day on another day. The Supreme Court cited its own precedents, although they relate to different cases (judgment 1132/2020, which addresses the issue of remuneration or compensation for public holidays and weekly rest periods when neither one or the other can be taken) or address different scenarios (judgment 570/2022, which examines a case of shift work in which rest periods are not taken on fixed days but in an irregular and random manner on a discretionary basis). Despite this, and the fact that the court itself is aware of the different scenarios examined (in the case, "the weekly rest period is predetermined when the annual personal calendar is set, and the company cannot change it depending on public holidays"), which it makes clear by saying that "at first glance there is a difference that makes the application of the doctrine established in the cited judgments unfeasible",  the doctrine in those decisions hovers over the judgment being discussed (otherwise the extensive reproduction in this judgment of the legal grounds of those decisions cannot be understood).

After completing this curious presentation of the judicial precedent, despite not applying to the case, the court raises the fundamental issue of the debate: "whether, in the absence of any (sic) tortuous intention on the part of the company, anyone whose predetermined weekly rest period overlaps with a public holiday on a workday has the right to take a rest day to compensate for the "loss" caused by that overlap". To answer this question, the court makes an interesting distinction between the purposes of articles 37.1 and 37.2 of the Workers’ Statute: whereas article 37.1 "is for preserving the occupational health" of workers, article 37.2 "bears no relation whatsoever to occupational health, but to "facts of special relevance or consequence in the civil or religious order", although "their rules impact the content of the employment relationship". However, no consequences are drawn from this distinction, nor is it taken into account that civil or religious aims can also be met if the holiday coincides with a day of inactivity from work (rest period). Instead, the distinction is disregarded to bring everything back to the right to rest: "the rules on days off, by specifying the right to rest and the associated consequences, affect the essential elements of the employment contract". For this reason, "the principles governing the right to work and rest from work as a whole, whether for health or by social convention" (my italics)  are considered.

These brief arguments are used to confront the ruling in the judgment, which replies to the question raised, although with two important preliminary observations:

• Recognition (which is going to occur) of the right to take all weekly and annual rest periods and public holidays must not have consequences on annual working hours, leaving aside also the repercussions that this rest period may have on their distribution (these issues fell outside the subject of the proceedings).
• Therefore, in summary, the right to rest at issue should not in itself affect annual working hours or their distribution.

This takes us to the ruling, which finds that workers at the company affected by the conflict have "working days from Monday to Sunday, have an established weekly rest day on a fixed day between Monday and Friday, have the right to be compensated where a public holiday on a workday coincides with their rest day, and can take another rest day in lieu of that public holiday, without limitation to compliance with the annual working hours".

Although there is a striking lack of consideration of the system agreed at the company (which the court does not ignore, although it does not enter into assessing it), with recognition of additional days’ vacation (differentiating between workers affected by the conflict, with working hours from Monday to Sunday, and those who are not), an analysis of the ruling for the purpose of applying the judicial doctrine arising from the judgment (in addition to enforcing it at the company concerned) must dissect its content. Thus:

• In cases involving working days from Monday to Sunday. Therefore, only in cases of work being performed every day of the week.
• They have an established weekly rest period on a fixed day between Monday and Friday. Therefore, only where the employee works every day of the week and a fixed weekly rest day has been established between Monday and Friday.
• If the set day of rest coincides with a public holiday. Therefore, the only case contemplated is where, for a specific worker, the set day of rest coincides with a public holiday.
• The worker will have the right to be compensated for the rest on a public holiday with "another day of rest in lieu of that public holiday". Therefore, an additional day of rest is provided to compensate for the public holiday not taken (not the rest day that coincides with the public holiday).
• Without limitation to compliance with the annual working hours. Therefore, the annual working hours may not be reduced by the granting of a rest period in lieu of an additional public holiday.

Leaving aside how odd it may seem that if it is the public holiday that is treated as not being taken, and rather than being a rest for the worker as an occupational health measure, it is for religious or civil purposes (not prevented, but rather facilitated, by the fact that the worker is enjoying a rest from work), the issue should be resolved by granting an additional day of rest (when the rest is considered to have actually been taken), there are several interpretative problems raised by the ruling:

• If what has not been taken is a rest day for a public holiday, could the granting of the additional day be replaced with the payment of the compensation for that day? Without the 75% increase, because there has been no actual provision of work (article 47 of Royal Decree 2001/1983, of July 28, 1983). By bearing in mind that, because it is a public holiday that has not been taken (not a weekly rest period), the protection of occupational health does not come into play, instead the religious or social conventions underlying the holiday. The worker would not be deprived of a right to participate in religious or civil celebrations, but due to being on a rest day they would receive the relevant amount of economic compensation. In this way, it would be guaranteed that the annual working hours would not be affected, as required by the Supreme Court, nor would it be necessary to adapt their distribution.
• If an additional rest day is chosen, how can the annual working hours not be affected? The additional day does not seem to be able to be divided to be enjoyed with reductions in working hours over several days, because the judgment specifically speaks of "another day". The options would therefore be to:
• Remove an additional rest day or days from vacation (at the company, as the judgment acknowledges, there were four rest days in addition to those provided for in the agreement for workers working from Monday to Sunday, and only three for the others).
• Establish additional working days, by modifying the workday calendar, in such a way as to ensure compliance with the working hours.
• Establish extensions of daily working hours to ensure compliance with annual working hours.

All these issues must be addressed by collective bargaining, by establishing a number of annual working hours and drawing up a workday calendar that provides a suitable response. Nothing in the judgment allows us to conclude that the overlapping of a day of rest with a public holiday always and automatically entails the granting of an additional rest day.