The lunch break according to Spain's Supreme Court: when it is rest and when it must be paid

Updated on 27 September 2026. We have corrected how we described Supreme Court judgment 808/2025: the court sided with the employer because it guaranteed full disconnection during the meal break, and without that disconnection the break is, under the applicable collective agreement, on-call ("a disposición") or presence time, not "actual working time". We have added what the law says about breaks, how the rules on a break can be changed and the deadlines for bringing a claim.

Is your lunch break rest or working time? It depends on one very specific question: whether you remain at your employer's disposal during that break or can genuinely switch off. Judgment 808/2025 of the Tribunal Supremo (Supreme Court), of 23 September 2025 (STS 808/2025, the usual Spanish citation for a Supreme Court judgment; Social Chamber, appeal 105/2023, ECLI:ES:TS:2025:4159), is still the Supreme Court's reference ruling on the lunch break, and it is worth reading carefully, because it is often summarised the wrong way round.

What the Supreme Court decided in STS 808/2025

The case

Ambulancias Domingo SAU provides emergency medical transport in Barcelona with 12-hour shifts that include one hour for lunch or dinner. For years, that hour was spent with communications switched on, and the crews could be called out for an urgent service. The applicable collective agreement calls that time "tiempo de presencia" (presence time: at the employer's disposal, but without actual work), several earlier judgments had recognised the workforce's right to be paid for it and, in April 2017, a company agreement extended that payment to all the crews in the service, whether or not they had sued.

At the end of 2017, the public company that runs the emergency service and subcontracts it approved a new protocol: during the 60-minute break, crews would not be at its disposal, could switch off all communications and could use their time freely. The employer then opened a consultation period with the comité de empresa (works council) and, with no agreement reached, announced on 17 January 2018 a collective modificación sustancial de condiciones de trabajo (substantial modification of working conditions) under Article 41 of the Estatuto de los Trabajadores (Workers' Statute, ET): the meal hour would become rest.

The Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia), in a judgment of 10 March 2022, declared the measure void, found it to be retaliation for the workers' earlier claims and ordered the employer to keep paying that hour as on-call time.

The ruling

The Supreme Court upheld the employer's appeal, set aside the High Court's judgment, dismissed the unions' claim and declared the modification justified. In short:

1. The key is guaranteed disconnection. If the employer guarantees full disconnection during the meal hour, that time is rest; if it cannot guarantee it, it is on-call time under the terms of the collective agreement.
2. The earlier judgments did not prevent the change. They recognised payment when there was no genuine disconnection; once the facts changed, there was no res judicata.
3. There was no retaliation. The employer treated those who had sued and those who had not in the same way, and negotiated in good faith, providing the documents requested.

What the judgment does not say

• It does not classify a break without disconnection as "actual working time". Under that collective agreement it is presence time: it is paid, but it is not the same as actual working time for the purposes of working hours.
• It does not require every link with work to disappear. The ambulance's data terminal could not be switched off and the crews remained in uniform and in charge of the vehicle. Even so, the clear instruction that they were not at the employer's disposal, together with the authorisation to switch off all telecommunications systems and use that time freely, was enough for the court to find that disconnection was guaranteed.
• It is not an automatic rule for every sector. It resolves a specific dispute under a specific collective agreement: in your case, you will need to look at your collective agreement, your contract and how the break works in practice.

What the law says about breaks

• Minimum break. If your continuous working day lasts more than 6 hours, you are entitled to a break of at least 15 minutes (30 minutes if you are under 18 and the working day exceeds four and a half hours). It only counts as actual working time if your collective agreement or your contract says so (Article 34.4 ET).
• Maximum working hours. The limit is still 40 hours of actual work a week on an annual average, with at least 12 hours' rest between working days (Articles 34.1 and 34.3 ET).
• Work or rest, with nothing in between. Directive 2003/88/EC only recognises those two categories. The Court of Justice of the EU has ruled that a break during which you must be ready to leave within two minutes can be working time if those constraints objectively and very significantly affect your freedom to use that time (judgment of 9 September 2021, case C-107/19).
• Presence time in transport. In transport and work at sea, time spent at the employer's disposal without working (waiting, standby duty, "meals on the road") does not count towards maximum working hours, cannot exceed 20 hours a week on a monthly average and is paid at least at the ordinary hourly rate, unless it is compensated with paid rest (Article 8 of Royal Decree 1561/1995). Collective agreements specify which situations are covered.

"Presence time" is a category used in transport and in some collective agreements: if your sector does not regulate it and you remain at your employer's disposal during the break, it will normally be treated as working time. A more favourable condition (condición más beneficiosa) is an improvement your employer grants voluntarily and consistently over time, even if it is not in writing: for example, paying for the lunch hour for years.

When a break stops being rest

Signs that your break is not genuine rest:

• you have to keep the company's phone, radio or app switched on and respond;
• your employer can call on you for a job or an incident and you must deal with it, even if only occasionally;
• the employer interrupts or moves the break whenever it needs to;
• you must be back at work so quickly that all you can do is wait.

What matters is not where you eat or whether you wear a uniform, but whether you are at the employer's disposal. Keep any instructions or protocols on the break, the messages and calls you receive during it, your rotas and the registro diario de jornada (daily working-time record), which your employer must keep, retain for four years and make available to you (Article 34.9 ET). If it does not keep a reliable record, that breach can count against it when the evidence is assessed.

If your employer wants to change the rules on the break

Turning a paid break into rest, making it longer or moving it affects working hours, schedule or pay, so it is normally a substantial modification of working conditions (Article 41 ET), whether the condition comes from your contract, a company agreement or a condición más beneficiosa (Article 41.2 ET):

• Individual: you must be notified at least 15 days in advance.
• Collective: the employer first needs a consultation period of up to 15 days with the workers' representatives; without agreement, the decision takes effect 7 days after notification.
• If the condition is set out in your collective agreement, the opt-out procedure in Article 82.3 ET must be followed.
• If the change harms you and affects your working hours, schedule, shifts or pay, you can terminate your contract with 20 days' pay per year worked, up to nine months' pay (Article 41.3 ET).
• Imposing it without following these procedures is a serious offence (Article 7.6 of the Ley sobre Infracciones y Sanciones en el Orden Social, LISOS, the Employment Offences and Penalties Act).

If you are an employer and want the break to be rest, STS 808/2025 shows the way: clear written instructions, genuine permission to disconnect, no calls during the break (if you need to be able to call staff, that hour will not be rest) and the internal digital disconnection policy required by Article 88 of Organic Law 3/2018 on the Protection of Personal Data and Guarantee of Digital Rights.

How to claim and the deadlines

• Challenging the change: you have 20 working days from the day after notification (Article 59.4 ET and Article 138 of the Ley reguladora de la jurisdicción social, LRJS, the Social Jurisdiction Act), with no need for prior conciliation (Article 64 LRJS). If the change is collective, the workers' representatives can bring a collective dispute.
• Claiming unpaid time: this is a claim for money, with a time limit of one year from when each amount should have been paid (Article 59.2 ET). Before going to court you must attempt conciliation (in Madrid, before the SMAC, the Comunidad de Madrid's mediation, arbitration and conciliation service). The alternative dispute resolution requirements (MASC) of Organic Law 1/2025 do not apply to employment matters (Article 3.2).
• Reporting to the Inspección de Trabajo (Labour Inspectorate): breaching the rules on working hours, rest periods or time recording is a serious offence (Article 7.5 LISOS), with fines of €751 to €7,500 (Article 40.1.b LISOS).

What has changed in 2026

• Written information about your working hours. Since 5 October 2026, when it came into force, Royal Decree 723/2026, which replaces Royal Decree 1659/1998, has required employers to tell you in writing how long your working day is, how it is scheduled and how it can be changed, if your employment lasts more than four weeks. If you already have a contract, you can request this information and your employer has 30 working days to provide it.
• Digital time recording. The Government has announced a royal decree to make time recording digital, but as of 27 September 2026 it has not been published in the BOE (Official State Gazette).
• The rules on breaks have not changed. Article 34 ET is the same as when STS 808/2025 was handed down, the reduction to a 37.5-hour week put forward in 2025 was never approved, and we are not aware of any later Supreme Court judgment changing its approach to the lunch break.

Frequently asked questions

Does my employer have to pay me for my lunch hour?

Yes, if it is not genuine rest (you remain at your employer's disposal). If you can switch off and use that time freely, your employer only has to pay for it if your collective agreement, your contract, a company agreement or a condición más beneficiosa provides for it (for example, because your employer has voluntarily paid for it for years). If you have been paid for it until now, your employer cannot simply stop: it has to follow the substantial modification procedure in Article 41 ET (or the one in Article 82.3 ET if the payment is in the collective agreement). If it is an Article 41 ET modification, you have 20 working days to challenge it.

What should I do if I am called during my break?

If your employer expects to be able to call you during the break and for you to respond, even if it only does so occasionally, it is not guaranteeing disconnection and the break is not genuine rest. The sensible approach is to deal with anything urgent, keep a record (messages, emails, time records) and claim afterwards, rather than refusing at the time.

Would you like us to review your case?

If you are not sure whether your break counts as rest, you have been notified of a change or you want to claim unpaid hours, we can go through your collective agreement, your rotas and your time records with you: book a consultation. If you want to challenge a modification, remember that the deadline is only 20 working days.

Legislation and sources

• Workers' Statute (Estatuto de los Trabajadores, consolidated text), Articles 34, 41, 59 and 82.3
• Royal Decree 1561/1995 on special working hours, Article 8
• Law 36/2011 regulating the social jurisdiction, Articles 63, 64 and 138
• Organic Law 1/2025 of 2 January on measures for the efficiency of the Public Justice Service, Article 3
• Employment Offences and Penalties Act (LISOS), Articles 7 and 40
• Organic Law 3/2018 on the Protection of Personal Data and Guarantee of Digital Rights, Article 88
• Royal Decree 723/2026 of 9 September transposing Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union
• Revista de Jurisprudencia Laboral (BOE): commentary on STS 808/2025 of 23 September (ECLI:ES:TS:2025:4159)
• Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time
• Court of Justice of the EU: judgment of 9 September 2021, case C-107/19