The Court determines that the burden of proof regarding the working day falls on the company.

Appeal number 1038/23 is resolved, against the ruling of the Social Court No. 45 of Madrid (orders No. 320/2023).

Mr. Cándido, a hostel worker, sued his company for payment of unpaid overtime and night hours between March and November 2022. Employed part-time since 2015, he claims a total of 67,036.12 euros plus interest. The company alleged the closure of the business as a reason for terminating the contract and did not attend the conciliation proceedings or the trial.

The lower court dismissed the claim and acquitted the defendant company considering that the worker had not proven the completion of the claimed overtime.. The only document presented by Mr. Cándido, a handwritten record of hours, was not sufficient evidence, since it did not have a signature or company seal and did not coincide with the data in the lawsuit.

The legal representation of D. Candide appealed arguing that the company, obliged by law to keep a daily record of the working day, did not appear at the trial despite being duly notified, nor did it present the requested evidence admitted by the court (time record of the claimed period) and the interrogation of the legal representative could not be carried out. This constituted bad faith conduct, violating the exercise of the right of defense contemplated in art. 24 of the EC.

D. Cándido was the only employee of the hostel, open 24 hours a day, so the amounts claimed corresponded to days worked on a regular basis, they were not sporadic overtime.

The issue under discussion was to determine who bears the burden of proof of carrying out overtime and night hours.. The social chamber of the TSJ of Madrid considered several aspects to make its decision:

• The employee provided the only evidence he had at his disposal during the trial.
• The company had the legal obligation to record the daily working hours of its workers (according to articles 35.5 and 34.9 of the Workers' Statute) and to guarantee said registration.
• Although in general, the burden of proof falls to the plaintiff (D. Cándido), in this case, the company had to assume it due to the rule of ease and availability of the burden of proof, which corresponds to the company. Furthermore, when it is proven that there is a regular and uniform working day, such a detailed level of proof regarding overtime is not required; it is enough to prove the habitual nature of overtime.
• It is not possible for the worker to be harmed by the company's obstructive conduct since he is in an unequal position vis-à-vis the company with respect to the possibility of demonstrating excessive working hours.
• The lack of registration of the working day by the company implies a presumption in favor of the worker that he has actually worked the working day claimed, while in the event that such recording of working hours exists, it must be the worker who proves the excess working hours performed.
• The amounts claimed are after the entry into force of RDL 8/2019 of May 12, which establishes the guarantee by the company of the time registration of the day, as also indicated in art. 34.9.of the ET.

The TSJ concluded that the burden of proof fell on the company. To do so, he analyzed, in addition to the doctrine presented, a ruling from the same section (recourse 100/2023), that of the CJEU (case C-55/18) and the ruling of the National Court (04/12/2015), which require companies to implement a record of working hours, according to Directive 2003/88/EC and art. 217.7 of the Civil Procedure Law.

The Court upheld the appeal, revoked the initial decision and ordered the company to pay the worker the 67,036.12 euros claimed plus 10% interest for late payment.