Bar wins overtime lawsuit despite forgotten clock-ins

A waitress at a bar-restaurant in Bizkaia claimed €5,476 for 384 overtime hours and lost. In the ruling, the judge of the Court of First Instance of Bilbao (Tribunal de Instancia) acknowledges that the burden of proving working hours lies with the company, and yet she clears the bar, because the bar had a clock-in system on its POS terminal, with a number for each employee, and it was the employees themselves who admitted at trial that they often didn’t clock in when arriving or leaving. The records ended up showing shifts of 55 hours and 52 minutes and 66 hours and 24 minutes in a row.

The decision is STIS 2179/2026, dated 23 July (Labour Section, court no. 12, judgment 231/2026). It is not final, because it can be challenged through a recurso de suplicación, an appeal before the High Court of Justice of the Basque Country.

What the waitress was claiming

The employee joined the bar in March 2024 on a gross salary of €1,773.83 a month and was dismissed with effect from 31 March 2025. At the conciliation hearing on 22 April, the company accepted that the dismissal was unfair and agreed to pay her €2,113.90 in compensation. Seven days later, the waitress filed a new conciliation request for overtime, and the company used this at trial to argue bad faith.

The claim covered three items between September 2024 and March 2025: 240 overtime hours, 112 hours of “weekly half-day” work and 32 hours of a training course taken in her free time. It broke them down by month (27 hours in September, 42 in October…), but did not say on which specific days they had been worked.

A POS clock-in that hardly anyone used

The witnesses described the system in detail. Each employee had an assigned number and was supposed to enter it on the bar’s POS terminal when arriving and leaving. An assistant waitress explained that they tried to use it, but that when they arrived they went straight to work and forgot. Her colleagues spoke of forgotten clock-ins and work overload, and the claimant herself admitted that she sometimes didn’t clock in or out, and that because she failed to clock out, the records showed shifts of up to 90 hours.

The most important witness was the bar’s manager. In May 2025, after the claim had been filed, he had signed a statement saying that overtime was not regularly worked at the bar and that any exceptional hours were compensated with time off. At trial he said the opposite: that the bar was short-staffed, that overtime was routine and that the company didn’t pay for it. About the claimant, however, he stated that she did not work two or three extra hours every day, and that sometimes, when there were new staff, either she or he would come in to close up or cash up.

He also admitted that he did not correct other people’s clock-ins and that he himself never clocked in, because he was at the bar the whole time it was open. The judge stresses that his testimony at trial completely contradicted the document he had signed himself.

Why the burden of proof didn’t sink the bar

The ruling does not question the general doctrine. It cites the 2019 ruling of the Court of Justice of the European Union (case C-55/18), a 2022 ruling of the High Court of Justice of the Basque Country and a 2023 ruling of the High Court of Justice of Catalonia, and accepts that, since Article 34.9 of the Workers’ Statute (Spain’s main employment law) was amended in March 2019, the burden of proving working hours lies with the company. If the company cannot show that it kept time records, the hours claimed can be accepted as proven. We explain this in more detail in our post on the reversal of the burden of proof for overtime.

In this case, however, the company had in fact set up time tracking. For the judge, the fact that the records did not reflect reality was due to forgotten clock-ins “not corrected or not reported by the employees to the company so that they could be corrected”. She sums it up like this:

“Era notorio, así, que el sistema no se utilizaba de forma correcta, siendo obligación de los trabajadores su utilización.”

Translation: “It was therefore well known that the system was not being used correctly, it being the employees’ obligation to use it.”

From that starting point, the ruling concludes that the lack of proper records meant the overtime actually worked had to be proven “reliably”. The text says la parte demandada (“the defendant”), but from the context (it goes on to criticise the failure to provide proof of the training course) it is referring to the waitress. Her claim failed to do so, because by breaking the hours down only by month it made it impossible to check them against the records provided by the company. The judge accepts that “there may be indications” of overtime, but dismisses the whole claim.

What could change on appeal

The records didn’t prove anyone’s hours, and with clock-ins of 66 hours in a row they couldn’t have. Four facts worked in the bar’s favour: that the system existed, that each employee had their own code, that the witnesses admitted they didn’t clock in, and that the claim came without a day-by-day breakdown. If the waitress had provided a day-by-day table with her start and finish times, backed up by messages or by the cash-ups she did herself, the 66-hour records would not have helped the bar rebut her.

The judge blames the errors in the records on the staff, but Article 34.9 states that “the company shall guarantee the daily recording of working hours”, and the manager, who ran the bar on the company’s behalf, knew that the clock-ins were wrong and did nothing to correct them. The ruling points out that there is no record of anyone notifying the company, but for practical purposes the manager of the bar was the company. In addition, Supreme Court ruling STS 372/2026, from April, establishes that records with major irregularities are equivalent to having no records, and shifts of 55 or 66 hours in a row fit that description. On appeal, the High Court of Justice of the Basque Country could reason that records like these do not meet the requirements of the Workers’ Statute and shift the burden back to the company. What still works in the bar’s favour is the lack of detail in the claim, because the Supreme Court itself requires the employee to quantify their hours precisely even when the burden lies with the company. We explain that ruling in detail in when employees must prove overtime, according to the Supreme Court.

Without a clock-in system, or with the records taken at face value

Without any clock-in system at all, the bar would have been weighed down by its manager’s testimony, as he admitted to routine overtime due to understaffing. According to the Supreme Court, evidence of that kind shifts the burden to the company even with a fixed schedule. With no records to put forward, the bar would have had to prove through witnesses that the waitress did not work those hours, and the person who had been its manager was testifying against it.

Article 35.5 of the Workers’ Statute requires the employer to give each employee, with their payslip, a summary of the hours recorded. If the bar had done so with the impossible shifts included, or had paid wages based on that data without checking it, the records would be the company’s own document, and the argument that the errors were the employees’ fault would lose almost all its force. Beyond the lawsuit, records that don’t reflect actual working hours can lead to a serious infringement under Article 7.5 of the LISOS (Spain’s Labour Infringements and Sanctions Act), which expressly covers time records.

The case resembles that of a bakery that avoided paying 624 overtime hours, also in the Basque Country, although there the records were complete and were the evidence that proved the employee did take his rest periods.

How to avoid forgotten clock-ins in hospitality

At this bar, things went wrong at both ends of the shift. The assistant waitress said that when they arrived they started working without clocking in, and the 90-hour shifts came from missed clock-outs. An open clock-in can be fixed in a minute the next morning. Months later, with the claim already filed, it can only be reconstructed through witnesses. What we would have changed at this bar:

• Make the manager clock in too. The judge didn’t hold it against the company, but on appeal it is the easiest point to build an argument that the company knew about the failures and tolerated them.
• Check the previous day’s open clock-ins every morning and close them with the real time, keeping a record of who makes the correction, when and why.
• Put in writing that staff must clock in and report any errors. The judge gave weight to the fact that there was no record of any such reports. We explain what a company can do after a missed clock-in in Can I be penalised for forgetting to clock in?.
• Hand over the monthly summary of hours required by Article 35.5 with each payslip. It forces you to look at the records every month, and the 55, 66 and 90-hour shifts would have stood out long before the trial.

The new Royal Decree on digital time tracking, which is still going through the approval process and has not yet been published in the BOE (Spain’s Official State Gazette), also provides that every change to the records must be traceable. If it is approved in that form, a correction made after the fact without leaving a trail will carry even less weight.

How Cleverfy solves it

Cleverfy is time tracking and working-hours registration software for SMEs and self-employed businesses in Spain. In a venue like this one, the goal is to catch a missed clock-in the same day, not at trial:

• If an employee hasn’t clocked in, clocked out or logged their break, they get an alert on their phone.
• Reminders can be set for each of those moments.
• The manager gets alerts about missing clock-ins.
• If someone leaves their shift open, the app flags it the next day and suggests the correction straight away. It records who requested it, who approved it and why.

The team can clock in from their phone or from a tablet at the entrance. If you run a bar or a restaurant, see how our time tracking software for hospitality works, try it free for 14 days, book a demo or check our plans.

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This article provides general information about a specific court decision, which is not yet final, and does not constitute legal advice. For specific situations, it is advisable to consult an employment lawyer.

Sources:

• STIS 2179/2026, dated 23 July (Court of First Instance of Bilbao, Labour Section), CENDOJ
• Workers’ Statute, Articles 34.9 and 35.5
• CJEU ruling of 14 May 2019, case C-55/18
• LISOS (Royal Legislative Decree 5/2000), Article 7.5