Audika manager who didn't clock in loses her overtime claim

The High Court of Justice of Castile and León (TSJ) has refused to let a regional manager at Audika (Audio Selección SL) in León add overtime spent travelling to her salary when calculating her severance pay. She wanted her salario regulador, the salary base used to calculate severance, raised from €4,289.32 to €5,927.02 gross a month. The company had given her an app to clock in from her phone, which let her do so at any time of the day or night, and she didn’t use it.

According to the court, the employee:

“no puede pretender trasladar a la empresa las consecuencias probatorias de una ausencia de registro que, en este caso concreto, no deriva de la inexistencia de un instrumento puesto a su disposición, sino de la decisión de la propia trabajadora de no utilizarlo”

Translation: “cannot seek to shift onto the company the evidentiary consequences of a lack of records which, in this specific case, does not stem from the absence of a tool made available to her, but from the employee’s own decision not to use it”

The decision is STSJ CL 3834/2026, dated 9 October (Labour Chamber in Valladolid, recurso de suplicación 1693/2026, the appeal heard by the regional High Court). It is not final, because it can still be challenged through a recurso de casación para la unificación de doctrina, an appeal to the Supreme Court to unify case law.

An unfair dismissal and €1,600 at stake

The employee joined the company on 3 February 2025 as Regional Manager, on a permanent full-time contract. Her receipts place her at hearing care centres in Castile and León, Asturias, Galicia and Madrid, and according to her appeal she had no fixed workplace. On 12 December 2025 the company dismissed her on disciplinary grounds, accusing her of giving instructions to invoice hearing aid fittings that did not correspond to real sales.

The Court of First Instance of León (court no. 3, judgment 190/2026, dated 8 May) ruled the dismissal unfair and gave Audika the choice between reinstating her, with back pay of €141.02 a day for the duration of the proceedings, or paying her €4,265.82 in severance. The employee appealed only the salary figure. With the €5,927.02 she was claiming, her severance would have come to around €5,900, roughly €1,600 more by our calculation. With ten months’ service the difference is small. What makes the case interesting is why the TSJ refused to accept those hours.

Ten months on the road and an app nobody used

The schedule the court accepted as proven was 9:30 to 18:30, with a lunch break. She argued that her working day started earlier, when she left her home in a town right next to León to drive to Burgos, Valladolid, Salamanca, Gijón or Santiago, and ended when she got back. According to her account, the company planned the destinations three months in advance and paid for the car or transport, and she decided neither where she went nor when she had to arrive.

To prove it she submitted almost 180 pages of receipts and expense records, from taxis in Madrid and tolls on the León motorway to car parks in Burgos and Valladolid and coffees at roadside cafés. The judge went through them one by one and transcribed them month by month in the proven facts of the judgment. Many pages were illegible, for many days there was nothing at all, and the car park tickets, which made up the bulk of it, usually showed her arriving between 9:00 and 9:30 and leaving between 18:00 and 19:00, which is more or less the schedule she had already been credited with. There were early-morning receipts near her home (7:08, 7:30, 7:35), but only for a handful of days.

Her own time records are not among that evidence, and according to the fifth proven fact, time recording “depended solely and exclusively on the employee”, who clocked in “through her mobile phone, using an app”. In her appeal she tried to have that fact amended, arguing that the company’s hours document only recorded her presence in the shops and not the journeys. The TSJ refused, because that would have meant reassessing all the evidence, and in a recurso de suplicación the court can only correct obvious errors that follow from a specific document.

Unrecorded overtime on a fixed schedule

In her appeal she relied on STS 372/2026, dated 15 April, the Supreme Court ruling that sets out how the burden of proving overtime is shared when there are no time records. We explain it in detail in our post on that Supreme Court ruling. The TSJ turns it against her, for two reasons.

The first is the schedule. The Supreme Court distinguishes between employees with no fixed schedule and those who have one. With a set schedule, the employee doesn’t have to prove their entire working day, but they do have to provide some evidence that they worked outside those hours. Only once there is such evidence does the rule that the lack of records cannot count against them come into play. The manager had a regular schedule from 9:30 to 18:30, so it was up to her to prove the extra hours.

The second is that burden-of-proof rules only decide a case when there isn’t enough evidence. In León the judge had 180 pages of receipts and the witness testimony in front of her, weighed it all and reached a conclusion, and the TSJ cannot replace that with the assessment put forward by the appellant.

The ruling also takes her calculations apart. She had used “some Google application whose specific nature is not even identified”, taken the travel times it produced and added them in full as extra working time. According to the TSJ, that turned evidence that she had made certain trips into direct proof of specific overtime hours, and not every journey is overtime, because part of the travel took place within her ordinary working hours.

What would have changed the outcome

The claim had a legal basis. Since the CJEU’s Tyco ruling (case C-266/14, 2015), for employees without a fixed workplace, the journey from home to the first customer and from the last customer back home counts as working time. She cited it in her appeal and the TSJ doesn’t contradict it, although it never gets as far as applying it because the hours weren’t proven. If she had clocked in every morning when she left home and clocked out every evening when she got back, the company’s own records would have been her best evidence, and the debate would have centred on whether those journeys counted as working time, which is much more favourable ground for her than rebuilding ten months from receipts.

In Madrid, a property management firm with no clock-in system had to pay €41,192 for around 1,200 overtime hours calculated from the employee’s own Excel spreadsheet. That company had no system at all, and the court accepted the employee’s spreadsheet. Audika did have an app, and that carried more weight than the receipts and the Google travel times. Something similar happened at a bar in Bizkaia with clock-in on its POS terminal that the waiting staff didn’t use.

Article 34.9 of the Workers’ Statute (Spain’s main employment law) states that “the company shall guarantee the daily recording of working hours”, and guaranteeing it includes checking that the system is actually used. Audika was helped by the fixed schedule, the poor quality of the opposing evidence and the court’s finding that time recording depended solely on the employee. On different facts, a manager going months without clocking in and nobody noticing could be read as a failure tolerated by the company, and STS 372/2026 itself treats records with serious irregularities as equivalent to having no records at all. We explain what a company can do about these missed clock-ins in Can I be penalised for forgetting to clock in?.

There is a second weak spot. According to the employee, Audika’s hours document only recorded her presence in the shops, and the journeys weren’t recorded anywhere. The TSJ did not look into it, but another court might. If staff move between sites, the company needs to set out in writing when the working day starts (on leaving home or on arriving at the first site), and the clock-in has to reflect that. The new Royal Decree on digital time tracking, which is still going through the approval process and has not yet been published in the BOE (Spain’s Official State Gazette), also provides that every correction to the records must be traceable.

How Cleverfy solves it

Cleverfy is time tracking and working-hours registration software for SMEs and self-employed businesses in Spain. For teams that spend the day moving from one site to another, it helps everyone clock in and catches a missed clock-in the same day:

• Clock in from your phone with one tap, wherever the person happens to be, whether on the road, in a shop or in an office.
• Configurable alerts and reminders before clock-in time and, if someone hasn’t clocked in 15 minutes after their start or finish time, an alert through the app and by email.
• Alerts to the manager about missing clock-ins, so they can chase them up the same day.
• Traceable corrections: if someone leaves their shift open, the app flags it the next day and suggests the correction, recording who requested it, who approved it and why.

You can explore Cleverfy’s features, including clock-in alerts and reminders, try Cleverfy free for 14 days, book a demo or check our plans.

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This article provides general information about a specific court decision, which is not yet final, and does not constitute legal advice. For specific situations, it is advisable to consult an employment lawyer.

Sources:

• STSJ CL 3834/2026, dated 9 October (High Court of Justice of Castile and León, Labour Chamber in Valladolid, appeal 1693/2026), CENDOJ
• Workers’ Statute, Articles 26.1, 34.9 and 56.1
• CJEU ruling of 14 May 2019, case C-55/18