The importance of reliable time recording
September 2021 – Whose burden of proof is it with regard to overtime? If the employer does not have a tool that allows him to reliably record the daily working time, he must, according to the Brussels Labour Court, prove that the employee did not work the hours he claims.
The facts
In 2016, a woman was fired. The amount of her severance pay, and more specifically the number of overtime hours worked, gave rise to discussions. In June 2019, the Labour Court of Brussels required the employer to demonstrate that the working time registration system in his company complied with the description given by the Court of Justice a short time earlier, namely an objective, reliable and accessible system for measuring the daily working time performed by each employee.
On 22 May 2020, the Brussels Labour Court found that the employer had not reacted in time to this request. The employer therefore failed to demonstrate that such a reliable time registration system was in place and was therefore obliged to provide proof of the hours worked. As the employer did not do so either, the employee won the case in all respects.
The judgment is not interesting both because of the factual situation on which a decision was made, and because the Court shifts the burden of proof of overtime to the employer.
European Directive
Working time is a European matter, governed by, among other things, the Working Time Directive of 2003. This directive, to which our Belgian labour legislation has been adapted, stipulates among other things that the maximum working time in Europe is 48 hours.
This directive is sometimes the subject of discussions before the Court of Justice of the European Union, including in 2019, in the 'CCOO' judgment of 14 May 2019. This judgment concerns a discussion between a Spanish trade union and Deutsche Bank. The trade union demanded a reliable system for recording working hours, as according to the workers, many hours of overtime were worked without being paid.
The European Court of Justice confirms that the protective measures of the Working Time Directive are compromised without such a system.
"The objective and reliable determination of the number of daily and weekly working hours is essential in order to establish, on the one hand, whether the maximum weekly working time laid down in Article 6 of Directive 2003/88 ... has been complied with", the European Court of Justice states.
The Brussels Court
Based on this ruling, the Brussels Labour Court deduces that the Working Time Directive implies an obligation for an employer to install such a reliable time registration system (ruling of 22 May 2020). Otherwise, the employer must provide the necessary evidence to refute the employee's claims.
However, the ruling has raised many eyebrows for two reasons.
Firstly, the directive has no direct effect. This means that as a citizen you cannot invoke it directly. You can argue that Belgian law does not comply with the directive, but that does not mean that the judge can create a rule of law that would comply with the directive.
Furthermore, there has been a lot of criticism of the reversal of the burden of proof that the Court deduced from the CCOO judgment. This is a conclusion that the European Court did not draw. The Court simply stated that the Working Time Directive cannot have full effect if there is a reliable system for recording working time.
No revolution
The Court's reasoning can be questioned, as in practice most courts would have come to the same conclusion, even without reference to the CCOO ruling and the Working Time Directive.
If a worker claims that he or she has worked overtime, a judge will first examine whether the arguments and evidence put forward by the worker have any force of conviction. If so, the employer has the opportunity to invalidate these elements or to submit its own evidence. The judge will then weigh up each piece of evidence and reach a verdict.
In practice, an employer cannot limit himself to a position of principle ("in my company, overtime is not allowed"). Also in the past, employers have been ordered to pay overtime because they failed to convince the judge that they were right.
But the judgment reminds us that an effective system of recording working time is appropriate for both the employer and the employee.
