The majority opinion of the labor courts determines that the employer’s breach to comply with the obligation to record working hours presume the performance of overtime if evidence is provided by the employee.

Traditional case law on overtime required the employee to prove the performance of all the overtime claimed, demanding strict and detailed proof in this regard, even requiring the employee to prove each of the overtime hours worked day by day and hour by hour.

This judicial position changed with the publication of Royal Decree-Law 8/2019. Through this regulation, article 34 of the Workers’ Statute was modified, imposing on companies the obligation to implement an objective, reliable and accessible system that allows the daily working hours of each worker to be computed.

Henceforth, the majority of judicial decisions in this matter consider that it is up to the company to “disassemble” the employee’s claims regarding the performance of overtime, since it is within the employer’s scope to provide the records of working hours to be able to refute this issue.

Therefore, the record of working hours is the key instrument for the employer to defend itself against a claim for overtime, but what happens if the company does not provide the employee’s record of working hours to court?

Judicial pronouncements have been issued that reach different answers to this question since, in cases where the company does not provide the record of working hours, each court evaluates the specific case and whether there are indications of overtime.

For this reason, we can find judgments in which, even though the company does not provide the record of working hours to court, the employee’s claim for overtime is not automatically accepted. Specifically:

In conclusion, an employee’s claim for overtime will not always be automatically successful in the event of absence of a record of working hours, because it will depend on the judge’s assessment of the “circumstantial situation” of the specific case. However, it is also true that only compliance with this obligation to record working hours by the company will allow it to maintain an optimal position of defense.

In any case, we will wait for the solution that the Supreme Court could grant to this issue by unifying the doctrine on the matter.

Pedro José Pérez Sánchez 
Labor and Employment Law Department of Garrigues