No time tracking: restaurant pays €3,311 in overtime

A restaurant in Biscay, Spain has been ordered to pay €3,311.70 plus interest to a former employee for overtime, after the Basque Country High Court ruled that the lack of time tracking records prevents employers from defending themselves in working hours disputes.

The case: kitchen assistant claims unpaid overtime

The worker was employed as a kitchen assistant at a restaurant from September 2022 to June 2023, when he was dismissed (the dismissal was later ruled unfair).

During that period, the worker claims to have worked 43 hours per week instead of the 40 hours established in the Biscay Hospitality Collective Agreement. Those 3 extra weekly hours, accumulated over months, added up to the claimed amount.

First instance: court dismisses for lack of evidence

The Social Court No. 8 in Bilbao initially dismissed the claim. Why? The worker didn’t provide documentary evidence or witnesses to corroborate the overtime hours.

The company argued that:

• The worker was registered in the time tracking system but refused to clock in
• In the kitchen “there was no individual tracking”
• The actual hours worked were even less than contracted

The court considered that, without a “prima facie case” from the worker, the company’s lack of records couldn’t benefit the employee.

The High Court reverses: no records, employer loses

The worker appealed, and the Basque Country High Court ruled in his favor in a judgment dated January 20, 2026 (STSJ PV 242/2026).

The court applied two key legal grounds:

1. The CJEU doctrine

The ruling expressly cites the CJEU judgment of May 14, 2019 (C 55/18), which establishes:

“Member States must require employers to set up a system enabling working time to be measured. The worker is the weaker party in the employment relationship.”

2. Article 34.9 of the Spanish Workers’ Statute

Since 2019, Spanish law requires companies to:

“Guarantee daily recording of working hours, which must include the specific start and end times of each worker’s working day.”

Consequence: The burden of proof is reversed. It’s no longer the worker who must prove overtime, but the employer who must prove the hours actually worked. Without records, they cannot.

The ruling

The Basque Country High Court orders the defendant company to pay:

• €3,311.70 for overtime
• 10% interest for late payment

What this means for your business

This ruling reinforces a consolidated trend in Spanish courts: without reliable time tracking, employers are defenseless against any working hours claim.

The usual arguments (“the employee didn’t want to clock in”, “we organize ourselves”, “we don’t track that department”) no longer work. The obligation to ensure time tracking lies with the employer, not the worker.

Higher-risk sectors

Hospitality is one of the sectors with the most litigation over overtime, along with:

• Retail and commerce
• Construction
• Transportation
• Cleaning services

If your company operates in these sectors without a reliable digital time tracking system, the risk of similar rulings is real.

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How to avoid this situation

1. Implement a digital time tracking system that workers can’t “forget” to use
2. Keep records for 4 years (legal requirement)
3. Ensure the system is accessible to workers at any time
4. Prepare a protocol for handling clock-in incidents

Discover how Cleverfy can help you comply with the law →

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Source: Judgment STSJ PV 242/2026, ECLI:ES:TSJPV:2026:242, Social Chamber of the Basque Country High Court, January 20, 2026.