Burden of Proof: Digital Time Tracking vs None

Who has to prove overtime in court? The answer depends on a single factor: whether or not the company has a reliable time tracking system. This isn’t theoretical — it’s the difference between winning and losing thousands of euros in court.

In this article, we analyse the current legal doctrine, key rulings, and exactly how the burden of proof works in each scenario.

What is the burden of proof and why does it matter

In any employment dispute, someone must prove the facts. The burden of proof determines who loses when there isn’t enough evidence: if you were supposed to prove something and failed, you lose.

In overtime claims, this is critical. If an employee says they worked 300 overtime hours and the company denies it, who has to prove it?

The answer has changed dramatically in recent years.

The before and after: the CJEU ruling C-55/18

Until 2019, the rule was simple: the employee claimed overtime, and the employee had to prove it. No records, no witnesses, no case.

Everything changed with the ruling of the Court of Justice of the EU in case C-55/18 (Deutsche Bank). The CJEU established that:

• Member States must require employers to implement a daily working time recording system.
• The employee is the weaker party in the employment relationship.
• Without a recording system, it is practically impossible for the employee to prove their actual working hours.

Spain responded by strengthening Article 34.9 of the Workers’ Statute (Estatuto de los Trabajadores), which now requires all companies to guarantee daily time recording, keeping records for four years.

Scenario 1: the company has NO time records

When a company has no time tracking — or an incomplete or unreliable one — courts apply what’s known as the reversal of the burden of proof.

What does this mean in practice?

The company must prove that the employee did not work the overtime claimed. Without records, it simply can’t.

The legal basis is twofold:

1. Art. 34.9 ET: the company has a legal obligation to record working hours. If it fails, it cannot benefit from its own breach.
2. Art. 217.7 LEC (ease of proof): the court considers who could more easily provide the evidence. Who can record working time? The company, obviously.

Real case: the restaurant without time tracking

In the STSJ Basque Country 242/2026, a restaurant was ordered to pay €3,311.70 in overtime to a former employee. The company claimed the worker refused to clock in. The court responded:

“La carga de la prueba de la jornada realizada incumbe a la parte empleadora.”

Translation: “The burden of proving the hours worked falls on the employer.”

It didn’t matter that the employee provided no documentary evidence. Without company records, the employer lost.

Defences courts no longer accept

• “The employee didn’t want to clock in” → The obligation to guarantee recording lies with the company.
• “We relied on good faith” → Art. 34.9 ET requires an objective system, not trust.
• “In our industry, nobody clocks in” → The law makes no exceptions for sectors or company size.

Scenario 2: the company HAS digital time tracking

When the company has a reliable recording system, the situation reverses completely. The general rule under art. 217.2 LEC applies: whoever asserts something must prove it.

What does this mean in practice?

The employee must prove that the records are incorrect or that they worked more hours than recorded.

Real case: STSJ Catalonia 173/2026

This principle was perfectly illustrated in the STSJ Catalonia 173/2026. An employee claimed over 1,200 overtime hours and €30,000 in damages. The company, a sports federation, had implemented a digital clocking system (“Timenet”) since January 2023.

The court was clear:

“La empresa ha aportado el registro de jornada diario (…) se ha dado cumplimiento por la empresa a la obligación sobre el registro diario de jornada que se establece en el artículo 34.9 del Estatuto de los Trabajadores.”

Translation: “The company has provided the daily time record (…) fulfilling the obligation established in Article 34.9 of the Workers’ Statute.”

And the consequence:

“Ha de regir la regla común de la carga de la prueba del artículo 217.2 de la Ley de Enjuiciamiento Civil, y le corresponde a la trabajadora probar este exceso de jornada.”

Translation: “The standard rule on burden of proof under article 217.2 of the Civil Procedure Act applies, and it falls to the employee to prove this alleged overtime.”

Result: claim dismissed entirely. The digital records showed 1,752 annual hours, matching the collective agreement. The employee could not prove otherwise.

Comparison: with records vs without

Aspect	WITHOUT records	WITH digital records
Burden of proof	Falls on the company	Falls on the employee
If neither party provides evidence	Company loses	Employee loses
Company’s defence	Very limited	The records themselves are the defence
Legal basis	Art. 217.7 LEC (ease of proof)	Art. 217.2 LEC (general rule)
Financial risk	High (judgments + fines)	Low

What makes a time record valid as evidence

Not just any record will do. Courts require it to be:

1. Daily: reflecting each working day with start and end times.
2. Objective: a system not dependent solely on one party’s declaration.
3. Accessible: employees must be able to view their own records.
4. Preserved: for at least 4 years (art. 34.9 ET).
5. Tamper-proof: if the company can alter records without a trace, they lose evidential value.

A digital time tracking system meets these requirements by design. An Excel spreadsheet filled in by the boss at month-end probably doesn’t.

The detail many companies forget: documenting incidents

In STSJ CAT 173/2026, the ruling also revealed that the company had reminded the employee on multiple occasions to use the clocking system. This is crucial.

If an employee doesn’t use the time tracking system, the company must:

• Send written reminders (email, internal notifications).
• Document each non-compliance incident.
• Apply disciplinary measures if the behaviour continues.

Having the system isn’t enough; you must prove it’s being used and that the company is doing everything possible to ensure compliance.

Frequently asked questions

Does a paper-based record count the same as a digital one?

It depends. A paper record may be valid if it’s reliable, daily, and signed by the employee. However, courts increasingly favour digital systems because they’re harder to manipulate and provide full traceability. Moreover, the draft of the new Royal Decree will require exclusively digital recording.

What happens if an employee refuses to clock in?

The obligation to guarantee recording lies with the company (art. 34.9 ET). If an employee doesn’t clock in, the company must document it, insist, and if necessary, apply sanctions. It cannot use the employee’s refusal as an excuse in court.

Does the reversal of burden of proof apply only to overtime?

Primarily yes, but courts also apply it in disputes about standard working hours, rest periods, and holidays when the company cannot prove the time worked.

How much can it cost not to have time records?

Beyond overtime judgments (which can run into thousands per employee), the Labour Inspectorate can impose fines from €751 to €7,500 for failing to keep records. If records are found to have been falsified, penalties can reach up to €225,018 per workplace. With the new Royal Decree, penalties could increase significantly.

Conclusion: digital time tracking as legal insurance

Current judicial doctrine is unequivocal:

• Without records → the company bears the burden of proof and, in practice, loses.
• With reliable digital records → the employee must prove the data is incorrect, which is much harder.

It’s not just about legal compliance. It’s about protecting your business against claims that can cost thousands of euros.

With Cleverfy you can implement a complete time tracking system in under 5 minutes, from €1.50/user per month. Clock in via app, web, Chrome extension, or kiosk mode — all with full traceability and employee access.

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Sources: STSJ CAT 173/2026 (ECLI:ES:TSJCAT:2026:173), STSJ PV 242/2026, CJEU C-55/18.

Legal notice: This article is for informational purposes only and does not constitute legal advice.