STS 372/2026: the Supreme Court sets when the worker must prove overtime

The Spanish Supreme Court (Social Chamber) issued on 15 April 2026 judgment no. 372/2026 (cassation appeal for unification of doctrine 674/2025), settling a question that had divided the social chambers for years: when a company does not keep the record of the working day required by art. 34.9 ET, who has to prove the overtime claimed?

The Supreme Court’s answer is not “always the employer”, as several chambers had been holding, nor “always the worker”, as others had. It depends on whether there is a fixed schedule or not. And in each of the two scenarios the rule changes completely.

The case

A shop assistant at a butcher’s in Guadalajara claimed €13,319.48 from his former employer: €9,703.18 for overtime in 2021, €2,012.19 for overtime in 2022 up to his dismissal, and other items. He had been with the company since January 2020 with a split working day Monday to Friday (mornings and afternoons) plus Saturdays.

The company, a family-run SME, only kept time-records for three isolated months: March 2020, September 2020 and January 2022. At trial it acknowledged a small excess of around 80 overtime hours per year and accepted liability for €1,000.

The Social Court no. 2 of Guadalajara, the High Court of Justice of Castilla-La Mancha and now the Supreme Court awarded him only that: the €1,000 acknowledged by the company. The rest, dismissed.

Why does a worker on a split schedule and without a time-record end up losing almost everything claimed? The explanation lies in the new doctrine set out in the judgment.

The two scenarios distinguished by the Supreme Court

The reasoning of the rapporteur, the Honourable Mr López Parada, starts from a procedural observation: what has to be proved when overtime is claimed changes depending on whether there is a known fixed schedule or an irregular one, and the rule on who bears the burden of proof adjusts accordingly.

Scenario 1: schedule fixed in advance and known to both parties

This is typical of retail, offices, industry with stable shifts, or hospitality with fixed opening hours. There is a schedule that both parties know and that is followed regularly.

In this scenario, the worker does not have to prove the entire working day, only the excess over that schedule. And even if the company keeps no record, the Supreme Court refuses to automatically shift the burden to the employer. Its reasoning: forcing the company to prove exact compliance with a schedule that both parties already know would be a “proof of negative facts that is almost impossible to articulate”.

The practical rule: the worker must provide sufficient indicia that the fixed schedule is being breached. Till receipts with the time and the assistant’s name, supplier delivery notes, WhatsApp messages, emails, witnesses unconnected to the company, geolocation data… anything that paints a picture. A detailed hour-by-hour proof is not required, but something more than the worker’s mere assertion is.

Only when those indicia exist does the burden shift to the company. And then yes: if it produced no record, the problem is its own.

In the butcher’s case, the Supreme Court reproaches that neither was the time-record mentioned in the claim, nor was the company asked to produce it as documentary evidence, nor was any external indicium provided. Just the worker’s assertion against the employer’s contrary assertion. With no indicia and a fixed schedule, the company has no reason to bear the burden of proof.

Scenario 2: irregular or unpredictable schedule

The terrain shifts when we are dealing with on-call systems, rotating shifts without a fixed pattern, variable working days, permanent seasonal workers, hospitality where “you come when needed”, or occasional reinforcements. Any pattern in which the worker does not know in advance their concrete hours falls here.

Since there is no reference schedule, what has to be proved is the entire working day actually performed. The Supreme Court assigns this to the employer, who normally proves it via the time-record.

If the employer produces no record and provides no other sufficient evidence of the working day actually performed, the court must take as established the working day claimed by the worker, without need of prior indicia. The only conditions: that the worker has quantified the hours with sufficient precision (timetables, tables of days and hours) and that the figure is not illogical or absurd.

This is the scenario where a company without a record is most exposed, because there is no longer an intermediate indicia step filtering the claims.

What the Supreme Court requires of a record for it to be valid

The Supreme Court takes the opportunity to set three requirements for the time-record, drawing on CJEU case law (case Deutsche Bank C-55/18, May 2019, and Loredas C-531/23, December 2024): objective, reliable and accessible. The judgment does not develop the definition of each term and refers to the European doctrine, in which objectivity points to actual data on the working day rather than theoretical schedules, reliability to a system whose data cannot be altered opaquely, and accessibility to availability for the worker, the workers’ legal representatives and the Labour Inspectorate.

On reliability there is a nuance worth reading twice: if the record exists but has irregularities of great magnitude, it is equivalent to having no record and the evidentiary consequences are identical. If the discrepancies are minor, there is no automatic rule: the trial judge will weigh it case by case.

When the record does meet all three requirements, the data it produces enjoys a procedural presumption of veracity. Whoever wishes to dispute them —usually the worker— will have to prove that they do not match reality.

Takeaways for the employer

The company that has a fixed schedule and keeps no record is not protected because “the schedule is known”. It is protected only as long as the worker provides no indicium. And indicia are abundant today: WhatsApp from the shop’s group chat, geolocation from the company mobile, till receipts, supplier delivery notes, photos on social media with a visible time. Any well-prepared claim will have them.

The company with an irregular schedule —and there are far more of them than meets the eye, especially in hospitality, retail with extended opening hours, transport and services— plays with a different safety net: without a record it loses outright. The family-run SME that thinks “we’ll just sort it out by talking” is in this scenario more often than it imagines, because it is enough for the actual hours not to coincide with those in the contract for the schedule to stop being “fixed and known to both parties”.

And there is a third, less visible but important point: the record must be reliable, not just exist. An Excel sheet that the manager fills in every Monday with what they think they remember, or a paper notebook passed from hand to hand and rewritten, does not withstand the Supreme Court’s examination. Serious irregularity is equivalent to absence.

Takeaways for the worker

If you have a fixed schedule, simply asserting excess hours in the claim is not enough. Provide whatever you have: screenshots of messages asking you to stay late, photos of opening the premises with a timestamp, customer witnesses, records from your own mobile. And in the claim, expressly request that the company produce the time-record as documentary evidence. If it does not, the chamber will be able to weigh that refusal.

If your schedule is irregular, you no longer need indicia to reverse the burden. But you do need to specify your hours precisely: timetables, tables, dates. A generic assertion will not work for any judge.

Why this judgment matters

Until April 2026 there were chambers applying automatic reversal of the burden of proof and others always demanding indicia. The High Court of Justice of Castilla-La Mancha itself in this case and the High Court of Justice of Catalonia cited as a contrast resolved exactly the opposite on almost identical facts. The Supreme Court settles the question, separating the two scenarios and giving them distinct treatment.

For SMEs, the reading is practical: having a digital time-record is no longer a formality. It is the only way not to depend on which social chamber you draw and on what schedule each employee formally has in their contract.

How to prepare

Any digital system that records the exact start and end time of the working day per worker, retains the data for four years, does not allow manipulation without traceability and lets the employee consult their own clock-ins meets what the doctrine demands. The specific form —web, app, kiosk, card— the Supreme Court does not prejudge: what it values are the three requirements.

Cleverfy covers all three and adapts to the different scenarios that appear in the judgment: fixed retail shifts, split working days like the one in the case, hospitality with irregular schedules or mobile teams. From €1.50 per user per month, with no commitment. See features.

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Source: Judgment STS 1772/2026 (ECLI:ES:TS:2026:1772), Social Chamber of the Supreme Court, 15 April 2026, rapporteur the Honourable Mr Rafael Antonio López Parada.

This information is for informational purposes only and does not replace professional legal advice.

Image: façade of the Supreme Court (Madrid). Photo by Javier Pérez Montes, CC BY-SA 4.0, via Wikimedia Commons.