How do you prove overtime without a time record?

“How do you prove overtime without a time record?” is a question asked by workers and HR managers alike, and the answer makes many companies uncomfortable. When there is no reliable working-time record, proving overtime becomes easier for the worker and harder for the company, because the law shifts the weight of proof towards whoever was required to keep the record. We explain it from the company’s point of view, since the company is the one carrying the risk.

Quick answer

Worker’s evidence	Weight before a judge
Emails or messages sent outside working hours	High, they carry a timestamp
WhatsApp or internal chat asking them to stay	High if there is an express instruction
Rotas, shift plans and work sheets	Medium-high
Building or system access logs	High
Witnesses (colleagues, clients)	Medium
Their own diary or notes	Low on their own, add up as evidence

Without a company record, it is enough for those indicators to be coherent and reasonable for the burden of proving the actual hours to pass to the company.

Who has to prove overtime

The starting point is set by article 217 of the Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil, LEC): whoever asserts a fact must prove it. If a worker claims overtime, in principle it is up to them to establish it.

That rule has a decisive qualification in paragraph 7 of the same article, the so-called ease and availability of proof: the evidence should be required of the party best placed to provide it. And when it comes to working hours, the party that holds the data is the company, because article 34.9 of the Spanish Workers’ Statute (Estatuto de los Trabajadores) requires it to record the daily working time of the entire workforce, and article 35.5 requires it to total the overtime and give the worker a copy.

For years it did not work this way. Until the general recording obligation (2019), the courts used to require the worker to provide full proof of each hour of overtime, as in the well-known Spanish Supreme Court judgment of 22 July 2014. The worker could almost never meet that burden. The record changed the picture precisely because it left the company without the excuse that nobody held the data.

What counts as proof when there is no record

A judge does not expect laboratory-grade proof. They weigh the whole picture. These are the indicators that tend to appear in claims and that, taken together, are enough to trigger the ease-of-proof rule:

• Emails sent or received before clock-in time or after clock-out time.
• Messages on WhatsApp or the corporate chat with instructions to stay, cover a shift or finish an order.
• Rotas, shift plans and work sheets signed or published by the company.
• Access logs to the building, the car park or the IT system, which record connection and disconnection times.
• Tickets, delivery notes or orders closed with a timestamp outside working hours.
• Witnesses: colleagues who were there, clients served, suppliers.

None of these elements has to be perfect. The key is that, taken together, they paint a pattern the company could only refute with a record it failed to keep.

The lack of a record does not decide everything (and it pays to know why)

This is where many companies either grow complacent or panic too much. The Spanish Supreme Court, in several 2026 judgments, has set a more nuanced test than the headline “no record, company loses”.

What the Supreme Court says is that the absence of a record does not, on its own, prove that overtime was worked, nor does it automatically reverse the burden of proof. The worker must first provide that minimum circumstantial evidence. Where there is a fixed, individual, known schedule, the worker is not released from that initial contribution either. Only when there is reasonable evidence and the company has also breached its duty to record does the weight shift to the company, which will have to show with data what hours were actually worked.

For a small business this has a practical reading. The company that does not keep records does not lose “automatically”, but it is left without the one tool that would let it rebut the worker’s evidence. It arrives at the hearing defending its version on its word alone, against time-stamped emails and witnesses. On that ground, European case law works against it: in its judgment of 14 May 2019 (Deutsche Bank case, C-55/18), the Court of Justice of the European Union (CJEU) established the working-time record as an essential safeguard for making working-hours and rest rights effective.

Put another way, the company does not need the record to win a specific case; it needs it so as not to enter every claim at an evidential disadvantage.

How Cleverfy solves it

Cleverfy is time-tracking and working-time record software for small businesses and self-employed workers that turns the actual working day into solid evidence, rather than one side’s word against the other’s.

• Tamper-proof timestamp on every clock-in and clock-out, so the recorded working day cannot be disputed.
• Overtime kept separate from ordinary hours and totalled each month, ready for payroll and for responding to a claim.
• Full audit trail of any change, with a record of who changed what and when.
• Reports for the Labour Inspectorate and the courts in one click, with each person’s working time and summary.
• Four-year retention, always accessible if a claim or an inspection arrives.

We have seen this in our analysis of the Spanish Supreme Court doctrine on the burden of proof for overtime, in why without a record the company starts at a disadvantage and in how digital time tracking protects the company against claims. And if you are also unsure about when you can require those hours, we cover whether an employee can refuse to work overtime.

Conclusion

Without a record, overtime is proven with circumstantial evidence: emails, messages, access logs, rotas and witnesses. All the worker needs is to gather a coherent set for the burden of proving the actual hours to pass to the company, which was the party that should have held the data. The Supreme Court has qualified that this reversal is not automatic, but the message for any company is the same: the only way to reach a claim with arguments is to keep a reliable, differentiated working-time record from day one.

Try Cleverfy free for 14 days → · See plans from €1.20/user →

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Legal note: this is an informational article and does not constitute legal advice. Based on articles 34.9, 35.5 and 59.2 of the Spanish Workers’ Statute and on article 217 of the Spanish Civil Procedure Act. Collective bargaining agreements may set specific conditions; check yours before making decisions.

Sources:

• Workers’ Statute, Art. 34
• Workers’ Statute, Art. 35
• Civil Procedure Act, Art. 217