Recording working time and providing proof of overtime

Employers’ failure to record working time does not reverse burden of proof
Recording working time and providing proof of overtime
May 20, 2024

On January 10, the Lisbon Court of Appeal delivered an important ruling in an action regarding the recognition of the right to remuneration for overtime. In the ruling, the court clarified how evidence should be processed when the employer does not keep a record of working time.

In this case, the employee (plaintiff) requested that the employer (defendant) be ordered to pay €32,577.68 for overtime worked on rest days and public holidays.

The employee claimed that since the employer had not kept a record of overtime (because there was none), the burden of proof should be shifted. Therefore, the defendant should be required to prove that the plaintiff had not worked beyond the agreed-upon work schedule.

In practice, the burden of proving overtime lies with the plaintiff, who is the party invoking the right. However, this rule is reversed when the other party has culpably made this impossible by refusing to cooperate.

The court recognized that labor law mandates employers to keep records of both regular working time and overtime. Failure to do so results in an administrative offense obligating the employer to pay the employee for two hours of overtime for each day worked.

However, the court also stated that the absence of a record of working time does not shift the burden of proof to the employer. This is because the requirement for shifting the burden of proof (i.e., that the impossibility of providing proof results from the culpable behavior of the burdened party) does not apply here.

In fact, the court states that “the absence of records alone does not constitute grounds for reversing the burden of proof, since proof of overtime can be provided by any means, so it cannot be concluded that it is impossible to provide proof in the case at hand.”

To conclude, in light of this judicial view, there is now greater legal certainty that, in the future, the courts will consider that the failure to keep records of working time does not constitute culpable behavior that makes proof impossible, so the burden of proof will not be reversed. At most, employers will only be subject to an administrative labor offense, obligating it to pay two hours of overtime for each day worked, in accordance with the Portuguese Labor Code.

May 20, 2024