The right to weekly rest for healthcare personnel

Lawyou — Wednesday, 24 de february de 2021

The organization of working time and rest


The right to weekly rest is one of the main prerogatives of the worker

Understanding work rest in our legislation as those periods of time in which the worker is not obliged to render his services to the employer.

In the health field, one of the main issues to be regulated by the Framework Statute of the statutory personnel of the health services (Law 55/2003, of December 16), in relation to the organization of working time and rest, is the regime of alternative breaks.

This regime takes place when the staff of healthcare centers do not enjoy the minimum rest times within the periods indicated because they are required to work in order to guarantee continuity in social and healthcare care, that is, guard duty.

The Madrid Health Service resource

The Third Chamber, of the Supreme Court recently resolved (Sentence No. 2992/2018, of 10 Oct. 2019) the appeal filed by the Community of Madrid in defense of the Madrid Health Service, against the judgment issued by the Contentious-Administrative Chamber of the High Court of Justice of Madrid.

Dismissing the appeal of the Community of Madrid, the Chamber recognized the right of the worker -a member of the healthcare staff of the Gregorio Marañón University Hospital- to a weekly rest of 36 uninterrupted hours in a reference period of 14 daysand compensation for the rest not enjoyed in the four years prior to the filing of his claim, since his request had been denied at the time by the Managing Director of the Hospital where he worked.

The Supreme Court’s response

The Community of Madrid based its arguments on Madrid Law 4/2012 on the Modification of the General Budgets of the Community of Madrid for 2012, whose Article 13 provides that “the professionals of the Madrid Health Service who perform on-call duty will rest for 24 hours following the day of the on-call duty. The personnel who performshifts on Fridays and the day before a holiday will rest, in any case, on Saturday or the immediately following holiday, without being able to admit that this rest can be transferred to days after the holiday”.

Both the court of first instance and the appellate court, in support of the healthcare worker’s right, considered that the application of said article 13, when the healthcare professional performs 24-hour shiftson Saturdays or the day before a public holiday, “does not respect his uninterrupted weekly rest of 36 hours, nor does it contemplate the right to compensation provided in art. 54 of the Framework Statute for Statutory Staff (Law 55/2003).

It ruled that, for the application of the exceptional regime contemplated by article 17 of Directive 2003/88/EC on the organization of working time and to extend the reference period for weekly rest beyond the 14 days provided for by its articles 5 and 16 a), it is necessary thatthe rule of its article 5, first paragraph, improved by article 51. 1 of Law 55/2003, that is, that which establishes the right to a weekly rest of 36 uninterrupted hours in a reference period not exceeding14 days and offer a compensatory rest or anequivalent protection period under the terms of Article 17(2) of the Directive.

The Supreme Court’s ruling has meant a support for the Madrid Health Service by upholding the right of the healthcare worker. The vulneration of this basic right to weekly rest for workers is an important infringement in terms of the organization of working time, as it could always end up being detrimental to the health of the workers involved.

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