An employee has filed a legal claim with no grounds against my company, petitioning payment of the salary differences for working overtime. What options do I have available to be able to defend my interests in the courts? Could the worker’s claim simply be successful, if I have not implemented a daily record system of the staff’s working hours?

There are many companies that in their day-to-day operations are faced with legal claims filed by some of their workers claiming payment of salary differences due to their working overtime.

In this respect, it is useful to recall that, prior to 13 May 2019, in these cases the worker was the one that had to undertake the burden of the proof at the hearing that the overtime had been worked day by day, hour by hour, as well as the specific circumstances in which such overtime had actually taken place and this was unless the worker could prove he/she had recurrently and habitually worked the overtime.

As of such time, due to the Legislative Royal Decree 8 of 8 March 2019 coming into force on urgent measures for social protection and combating job instability in working hours, the game rules were changed because all companies were obliged to guarantee a documented record system for the working hours of their staff, including the specific time for beginning and ending their working day because, pursuant to the principle of the facility to provide evidence governing the labour process, it was easier to assign the burden of the proof to the company through such system to prove that the claimed overtime had not been worked by their employees, and accrued as of such date.

So what happens? As our keen readers may have already seen, due to this new paradigm, there have been many workers who, knowing that their companies have failed to implement a system for recording working hours (or, having implemented one, it does not meet the requirements stipulated for such purpose in the labour regulations in force) have been encouraged to file claims against their employers, petitioning the salary differences arising by possibly and hypothetically working overtime that, even though they have not worked it, has led the courts to tip the scales in their favour, without their needing to submit any evidence whatsoever to prove their claims.

Therefore, be careful! Regarding this issue, the Labour Division of the High Court of Justice of Catalonia, in its recent judgement number 2353/2022 of 14/04/2022, ruled that, even in such cases, the worker is not exonerated from providing the minimum prima facie evidence proving that he/she had worked such overtime in order for his/her claim to be successful.

Judgement number 2353/2022 of the High Court of Justice of Catalonia (Labour Division), of 14/04/2022 (Appeal for Reversal Number 6963/2021).

In the case analysed, a worker filed a claim by virtue of which he petitioned, among other items, payment of a total of 743 hours overtime, allegedly worked between January 2019 and January 2021, without their nature as such being specified in such claim nor was any evidence or prima facie proof whatsoever submitted that could allow it to be considered that the services were rendered in the hours alleged in his claim. Based on the previous explanations, the appealed judgement dismissed the claim filed by the worker related to this issue due to considering working such overtime had not been proven.

The plaintiff lodged an appeal for reversal against such judgement, petitioning partial revocation of the ruling, in the sense of stating it had been proven that the claimed overtime had been worked and hence it must be compensated, contrary to the criteria adopted by the senior judge of the lower court.

The Labour Division of the High Court of Justice of Catalonia upheld the ruling of the lower court and hence dismissed the appeal lodged by the worker, based on the following grounds:

• By applying the rules for assigning the burden of the proof stipulated in Article 217.7 of the Spanish Civil Procedures Act, failure to implement a system for recording working hours in the company implies a presumption in favour of the worker regarding the claimed overtime being worked.
• However, the foregoing does not imply that working such overtime must be accepted as proven if the worker fails to submit any kind of evidence (not even prima facie evidence) proving he had worked such overtime since only in such cases can the burden of the proof be reversed in favour of the worker so that the company is the one that must prove that such overtime was not partially or fully worked or that such overtime had already been compensated.

In conclusion, does this mean that, as a company, I can avoid implementing a system for recording working hours without running any risks?

Absolutely not! According to the provisions in Article 34.9 of the Spanish Labour Relations Act, the company must always guarantee there is a daily record of its employees’ working hours and must keep the relevant records for the legally stipulated term (4 years). In fact, the Spanish Labour Infringements and Penalties Act states that infringement of the legal regulations governing the system for recording working hours implies a serious labour infringement for which fines of up to €7,500 could be imposed.

However, the fact that the company has not implemented the system for recording working hours does not necessarily lead to the worker’s claim petitioning the overtime being admitted, if such worker has not invoked or submitted any prima facie evidence that such overtime had effectively been worked.

In any case, it is always advisable to meticulously comply with the legally stipulated obligations related to recording working hours, as well as the technical criteria published by the Work Inspection Unit related to this matter, in order to avoid any possible claims being filed by workers petitioning overtime being successful, in particular in cases when they lack any grounds and the facts claimed are not in accordance with the real situation.

Please do not hesitate to contact us should you have any doubts about complying with the obligations related to recording working hours or if you require advice within the scope of a possible claim filed for salary differences related to overtime and you will probably be surprised to know that the solutions adopted by the Spanish courts are not always applicable to all the cases in the same way and the special features of each case must be assessed in order to find the most suitable solution.