Burden of proof reversal: why companies always lose without time tracking

For decades, workers claiming overtime had to prove it themselves. Without documentary evidence or witnesses, they lost. That era is over.

Today, the burden of proof has been reversed: it’s the company that must prove the hours actually worked. And without a reliable time tracking system, it simply cannot.

Let’s analyse the legal shift that has transformed employment litigation in Spain.

The traditional doctrine: the worker had to prove it

Until 2019, the Supreme Court’s jurisprudence was clear. In its judgment of 20 December 2017 (appeal 206/2016), the court stated:

“Article 35.5 of the Workers’ Statute does not require keeping a record of the actual daily working hours of all employees. […] De lege ferenda, a legislative reform clarifying the obligation to keep time records and making it easier for workers to prove overtime would be desirable, but de lege data, such an obligation does not currently exist.”

The practical consequence was devastating for workers: if they couldn’t document overtime, they lost the case. And the company had no obligation to facilitate that proof.

The turning point: the CJEU judgment of 14 May 2019

Everything changed with the judgment of the Court of Justice of the European Union in case C-55/18 (Deutsche Bank vs. Spanish trade unions).

The CJEU established that:

1. Member States must require employers to set up a system enabling the duration of daily working time to be measured (paragraph 60)

2. The worker is the weaker party in the employment relationship, and it is necessary to prevent the employer from being able to impose a restriction of their rights (paragraph 44)

3. National courts must amend settled case law if it is based on an interpretation that is incompatible with the objectives of a EU Directive

This last statement was a direct torpedo to the Spanish Supreme Court’s approach.

The new legal framework: Articles 34.9 and 35.5 of the Workers’ Statute

Following the CJEU judgment, Spain amended the Workers’ Statute. Article 34.9 now states:

“The company shall ensure a daily record of working hours, which must include the specific start and finish times of each employee’s working day. […] The company shall keep these records for four years.”

And Article 35.5 establishes:

“For the purposes of calculating overtime, each worker’s working hours shall be recorded day by day and totalled in the period established for the payment of wages, with a copy of the summary given to the worker with the corresponding payslip.”

The obligation is no longer just for overtime, but for the entire working day. And it’s a performance obligation: the company must ensure the record exists.

How courts apply the new doctrine

A recent case perfectly illustrates the change. In STSJ Basque Country 242/2026, a restaurant was ordered to pay overtime to a former employee despite the fact that:

• The worker provided no documentary evidence
• No witnesses were presented
• The company claimed the worker “refused to clock in”

The High Court of Justice of the Basque Country, applying the CJEU doctrine, declared:

“The burden of proving the working hours performed lies with the employer. […] The company did not prove at trial that the claimant worker adhered to their contractual schedule, nor that they refused to complete their time record, therefore the overtime claim must succeed in full.”

The result: a judgment of €3,311.70 plus interest.

Article 217 of the Civil Procedure Act: the ease of proof rule

The paradigm shift is also supported by Article 217.7 of the Civil Procedure Act, which establishes:

“For the application of the provisions of the preceding paragraphs of this article, the court shall take into account the availability and ease of proof that corresponds to each of the parties to the dispute.”

Who finds it easier to prove working hours? Obviously, the company — which is legally required to record them. If it doesn’t, it cannot then complain that the worker provides no evidence.

Which arguments NO LONGER work

Courts are systematically rejecting these employer defences:

• “The worker refused to clock in” → The obligation to ensure the record exists lies with the company, not the worker
• “We don’t track time in that department” → The law makes no distinction between departments; the obligation is universal
• “We organised ourselves” → Irrelevant; the record must exist regardless
• “Actual hours were less than agreed” → Without a record, there’s no way to prove it

Practical implications for businesses

This legal change has very concrete consequences:

1. Time tracking is evidence, not paperwork

Many companies see time tracking as a bureaucratic obligation. In reality, it’s their only defence against claims about working hours. Without it, they’re defenceless.

2. The system must be reliable and complete

Having “something” isn’t enough. The record must:

• Include exact start and finish times
• Be accessible to the worker
• Be kept for 4 years
• Not be unilaterally modifiable

3. Incidents must be documented

If a worker “forgets” to clock in or refuses, there must be documentary evidence. An email, a written warning — anything that shows the company tried to fulfil its obligation.

The future: the Digital Time Tracking Royal Decree

The draft of the new Royal Decree on time tracking goes further: it will require records to be exclusively digital, with remote access for the Labour Inspectorate and traceability of all modifications.

Companies that haven’t yet digitised their time tracking system will need to do so when the regulation comes into force.

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Conclusion

The reversal of the burden of proof is not an abstract theory: it’s the reality of Spanish courts in 2026. Every month, judgments are issued against companies that cannot prove their workers’ hours.

A digital time tracking system is not an expense: it’s legal insurance against claims that can cost thousands of euros per employee.

Learn how Cleverfy helps you comply with the regulations →

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Sources: CJEU Judgment C-55/18, STSJ Basque Country 242/2026 (ECLI:ES:TSJPV:2026:242), STS 20/12/2017 (appeal 206/2016).