The Social Chamber of the Supreme Court has issued a judgment in which it considers a cardiovascular injury suffered, suddenly, by a worker during the break from the “sandwich break”, as it is included in the working day according to the agreement of your company.
The High Court emphasizes that the brief rest during which the injury occurs is work time both for the purposes of the working day (by conventional provision) and the presumption of work, contained in article 156.3 of the General Law on Social Security. Said article provides that it shall be presumed, unless proven otherwise, that the injuries suffered by the worker during the time and in the workplace are constitutive of a work accident.
Through this ruling, the Supreme Court considers the appeal for the unification of doctrine raised by a worker who suffered syncope with cardiorespiratory arrest during “the sandwich break” in the dining room of his company.
The National Social Security Institute (INSS) recognized the Complainant, who worked as a cork grinder, a Permanent Disability in a degree of invalidity, derived from common contingency, with the right to receive 2,033 euros per month.
Disagreeing with said administrative resolution, the worker filed a lawsuit that was upheld by a Social Court in Algeciras. The court ruling sentenced the mutual to pay the corresponding benefits and acquitted the INSS, the General Treasury of Social Security (TGSS) and the company on the understanding that the applicable collective agreement considered the “sandwich break” as a time for work, so all the elements concurred for the presumption of innocence to operate without the defendant having distorted it.
For its part, the mutual company appealed the ruling to the Superior Court of Justice of Andalusia (TSJA), which concluded that the illness suffered by the worker occurred within the company but outside of working time, so it was not covered by the presumption of employment. When estimating the appeal, the Supreme Court annuls the TSJA ruling and confirms the one issued by the Social Court number 1 of Algeciras.
The Supreme Court explains in its ruling that the Workers Statute, in its article 34.4, contemplates the existence of this break of a duration of not less than fifteen minutes when the continuous daily workday exceeds six hours, and that it will be counted as work time effective when so established or established by collective agreement or employment contract.
The judgment, of which the magistrate Antonio V. Sempere has been a rapporteur, affirms that this “rest period” must necessarily be enjoyed at some intermediate point in the day, but not at the beginning or at the end of it, because in such a case it is not It would already be a rest, but a simple reduction in working hours, adding that this enhances “the nature of occupational health and safety associated with it.”
“There is an implicit connection with the effort (physical and mental) of the person who provides his activity; on the other hand, the short duration and, above all, the need to immediately resume productive activity suggests that we are facing a time linked to the content of the contract working, “notes the ruling.
This last idea, according to the sentence, is, surely, the one that explains the strange legal formula according to which work time is considered, but only if it is so agreed (collectively or individually).