By articles L3171-4 of the French labour code, In the case of a dispute relating to the existence or the number of extra hours worked, the business owner will provide the judge with the elements that can justify the actual hours of the worker.
In its judgment of 24 February 2004, the French Court of Cassation explained the legal regulations in detail. Since then, this judgment has been frequently confirmed, as is the case of the judgment of 15 January 2014, in which the judge again confirmed that proof of the completion of extra hours does not fall on any particular party.
In this case, the Court of Cassation confirmed that in the case of an appeal presented by a worker whose appeal had been rejected based on the burden of proof, the burden does not fall only on the worker. And it is remembered that, in the case of a dispute, the worker should present proof that justifies his claim and the business owner should present proof that supports his defence.
In Spain, Law 36/2011, of 10 October, regulating labour courts, sets out that from the start the worker must confirm the completion of extra hours.
The High Court of Justice in Cataluña, further details the distribution of the burden of proof of extra hours. The worker should show the excess time worked and the business owner should confirm the work carried out or the face to face hours. This judgment has been confirmed on more occasions, in particular in a judgment of the High Court of Justice in Madrid on 13 November 2009.
Thus, in Spain, a more noticeable disassociation is observed in the distribution of the burden of proof of extra hours. While in France the Law declares that the burden of proof does not particularly fall on either party, according to the Spanish labour system, the worker is the one who must confirm the completion of extra hours and the business owner is the one who must show the effectiveness of the work completed during such hours.
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