The absence of a daily working time record remains one of the most contentious issues in overtime claims. Since the introduction of the employer’s obligation to record working time, it has frequently been debated whether the lack of such a record automatically allows the overtime claimed by the employee to be presumed as having been worked.
The answer is not automatic. The employer’s failure to comply with working time recording obligations has significant consequences, but it does not, by itself, turn any overtime claim into an established debt. This is the central idea of Supreme Court Judgment 372/2026, of 15 April 2026, appeal no. 674/2025, in which the Supreme Court analyses how the burden of proof should be distributed when the company has not properly complied with the daily working time recording obligation.
The starting point remains clear: Article 34.9 of the Workers’ Statute requires the company to guarantee a daily working time record that includes the specific start and end time of the provision of services. In addition, Article 35 of the Workers’ Statute regulates the regime governing overtime and its control.
The practical question is what happens when that record does not exist, is incomplete or does not allow the actual working time to be reliably established.
There is no automatic presumption, but there is evidential risk
The Supreme Court rejects a rigid solution. The absence of a working time record does not automatically prove all the overtime claimed by the employee. The claim must be supported by sufficient indications, especially where there is a fixed, known and stable working schedule.
This means that, if the employee had a clearly determined ordinary working schedule, it will not be enough to state that the company did not keep working time records. The employee must provide some element capable of supporting the assertion that excess working time actually occurred: communications, schedules, emails, instructions, witnesses, activity outside working hours, operational documentation or any other reasonable indication.
However, the conclusion changes where there is no stable working time pattern or where the working time shows a significant degree of irregularity. In such cases, the absence of a record may significantly prejudice the company, because the record was precisely the instrument intended to prove the actual working time.
The judgment does not remove the employer’s obligation. On the contrary, it reinforces its importance. What it clarifies is that the failure to keep records does not operate in the same way in every scenario.
The difference between a fixed schedule and irregular working time
The most useful criterion in the judgment lies in the distinction between two situations.
The first is that of an employee with a fixed, stable and known working schedule. In this context, the absence of a record does not fully shift the evidential burden onto the company. The employee must provide indications that, despite the ordinary schedule, they performed effective work beyond their working time. The lack of a record may reinforce those indications, but it does not replace them entirely.
The second situation concerns variable, flexible, irregular working patterns or working time that is difficult to reconstruct. Here, the absence of a record carries much greater weight. If the company has not properly documented working time, it will have greater difficulty contesting the claim, because it will not be able to rely on the legally required instrument for proving actual working time.
This distinction introduces a more nuanced criterion. Not all overtime claims must be resolved in the same way. The analysis will depend on the organisation of working time, the regularity of the schedule, the evidence available and the degree of the employer’s non-compliance.
What this means for companies
For companies, the judgment should not be interpreted as a relaxation of the obligation to record working time. The record remains mandatory and must be reliable, objective, accessible and retained for the legally required period. Its absence may have administrative, evidential and economic consequences.
The practical reading is different: a company that does not have an adequate recording system places itself in a vulnerable position, especially in environments involving shifts, availability, mobility, remote work, split shifts, on-call duties, flexible working time or activity outside the workplace.
In those scenarios, the absence of records may seriously hinder the defence against overtime claims. The company will not only have to deny the existence of excess working time; it will also have to explain how it controlled working time and what elements allow the actual working time to be reconstructed.
For this reason, working time recording should not be treated as a formal or merely documentary obligation. It is a legal, organisational and evidential control tool.
What Human Resources should review
The first review should focus on the quality of the recording system. It is not enough to have a tool in place if it does not correctly reflect the start and end of the working day, if it allows non-traceable modifications or if it does not adapt to the company’s organisational reality.
The groups with the greatest risk exposure should also be reviewed: employees with flexible schedules, mobile workers, sales profiles, middle managers, remote workers, and employees with remote access to corporate systems or teams subject to peaks of activity. In these cases, the boundary between availability, digital connection and effective working time may generate conflict.
In addition, the record should be aligned with schedules, calendars, digital disconnection policies, overtime authorisations and compensation systems. A company may have a working time record and still maintain internal inconsistencies that weaken its position in the event of a claim.
Preventive management requires documentary consistency. What the schedules say, what the record reflects, what is communicated by email and what happens in practice must be capable of supporting the same version of events.
Practical criterion in the event of an overtime claim
When an employee claims overtime, and there is no working time record, the company should avoid a purely negative defence. It is not enough to state that the hours were not worked. It is necessary to reconstruct the working time with all available elements: agreed schedules, calendars, shift plans, internal communications, system access records, partial clock-in records, work reports, recorded activity, instructions received and any other data that may prove the reality of the time worked.
If the schedule were fixed and known, it would be relevant to demonstrate that stability and the absence of indications of habitual extensions of working time. If the working time was irregular, the company will need more robust evidence, because the lack of a record will weigh more heavily against it.
The judgment provides a rule of balance: the employee is not released from all evidential burden, but the company cannot benefit from its own non-compliance where the absence of records prevents the actual working time from being established.
Frequently asked questions
Does the absence of a working time record automatically prove overtime?
No. The Supreme Court has clarified that the absence of a record does not, by itself, automatically prove all overtime claimed. The employee must provide indications, especially if they had a fixed and known working schedule.
When does the absence of records prejudice the company the most?
When the working time is irregular, variable or difficult to reconstruct. In those cases, the company will have greater difficulty proving the actual working time if it does not have the legally required record.
Is the daily working time record still mandatory?
Yes. Article 34.9 of the Workers’ Statute requires the company to guarantee a daily working time record with the start and end time of the provision of services. The judgment does not reduce that obligation.
What evidence may be relevant in an overtime claim?
Schedules, calendars, emails, messages, system access records, work reports, employer instructions, witnesses, partial records, and any element that allows actual working time to be reconstructed may be relevant.
What should the company do to reduce risks?
Implement a reliable recording system, review its consistency with the real organisation of work and properly document overtime that is authorised, worked and compensated.
Employment advice on working time records and overtime
Working time recording is not merely a formal obligation. It is a key tool for organising working time, preventing disputes and defending the company’s position in overtime claims.
At Suárez de Vivero, we have a team specialised in Employment Law that advises companies on the review of working time recording systems, working time policies, overtime and the prevention of employment and evidential risks.
Contact our team to receive specialised advice and reinforce the legal certainty of your employment decisions.
