Working time records and overtime hours: the Spanish Supreme Court rules on the burden of proof

How should companies keep records of working hours?

Article 34.9 of the Workers' Statute (ET), introduced by Article 10 of Royal Decree-Law 8/2019 of 8 March, imposes a clear and unambiguous obligation on companies to record each worker's daily working hours, specifying the exact time of arrival and departure.

To this end, the regulation requires the company to organise and document this record in accordance with the provisions of the collective agreement, company agreement or, failing that, by decision of the employer following consultation with the workers' representatives. Furthermore, the records must be kept for four years and be available at all times to workers, their representatives and the Labour Inspectorate. However, the provision does not specify the specific requirements that the recording system must meet, although this does not exempt the courts from enforcing compliance. In this regard, the Court of Justice of the European Union, in application of Directive 2003/88, requires that the working time recording system meet three cumulative requirements: it must be objective, reliable and accessible. As these requirements are cumulative, the absence of any one of them will render the system adopted unlawful. Consequently, not every form of recording is valid; thus, if it does not meet the minimum conditions, it must be regarded as equivalent to the absence of any record at all.

Consequences for companies: how the burden of proof works

The requirement for working time records takes on particular significance given the vulnerable position in which the worker finds themselves when the business lacks a recording system that complies with the aforementioned parameters. Alternative means of proof, such as witness evidence, do not offer the same objectivity and reliability, and are therefore not considered sufficient to prove compliance with working hours and guarantee the worker's rights. Furthermore, witness evidence alone is particularly unreliable in the workplace, as workers may be reluctant to testify for fear of measures that might be taken against them.

The Supreme Court has clarified that, given that Article 34.9 ET obliges the employer to keep the record, it is the employer — and not the worker — who is responsible for providing the means of proof that allows the hours worked to be verified. For these purposes, the Court considers it essential to distinguish between two scenarios: (i) workers with a fixed, regular working schedule and (ii) workers subject to a wholly or partly unpredictable work pattern through an on-call system or similar arrangement.

Where there is a fixed and known schedule, the employer is not obliged to prove the entirety of the working day, but only the work performed outside those ordinary hours. However, this reversal of the burden of proof does not operate automatically: it is the employee who must first provide sufficient evidence of non-compliance with the fixed schedule. Only where there is sufficient evidence shall it fall to the employer to prove effective compliance with the schedule.

Conversely, where the employee is subject to a non-fixed schedule, the employer's burden of proof is broader: they must prove the entire working day. If the employer fails to do so, the working hours claimed by the employee shall be deemed to be correct, provided that the employee has raised this at the appropriate stage of the proceedings, specifying the hours worked with sufficient precision, using daily schedules or tables of the days and hours worked.

Conclusion

The judgment is based on a fundamental principle: no one may benefit from their own breach of duty, so that an employer's failure to comply with the recording obligation cannot become a procedural advantage for the offender. Where a record exists and meets the requirements of objectivity, reliability and accessibility, the data contained therein are presumed to be true for procedural purposes, and the burden of disproving them falls on the party challenging them.

Thus, the consequences of failing to keep an adequate record of working hours will vary depending on the worker's situation. In the case of workers with fixed hours, the employer's exposure may be limited, provided the worker fails to provide sufficient evidence of a breach of the working schedule. However, in the case of workers with irregular or unpredictable working hours, the absence of an adequate record places the company in a more vulnerable position, as the burden of disproving the hours claimed falls exclusively on the company, provided that the worker has raised the claim at the appropriate stage of the proceedings and with sufficient precision. In any case, having a robust and legally compliant recording system remains the most effective safeguard available to the employer.

For any queries regarding the impact of this ruling on your company or the adequacy of your working time recording systems, please do not hesitate to contact our Employment team.