Be Aware October 2020

Why employers should (already) have a decent time tracking system in place

In May 2019, the European Court of Justice issued a landmark ruling, confirming that EU member states shall oblige employers to implement an objective, reliable and accessible time tracking system, allowing for the registration of each employee’s daily working time. According to the European Court of Justice, this is necessary to safeguard the efficiency of the legal limitations regarding maximum working time for employees.

Belgian laws have not yet been adapted to this ruling, but that did not stop the Brussels Labour Court from already applying this ruling to a recent case which concerned, among others, the payment of 34 overtime hours by a company to a former employee.

The claim was contested by the concerned company-employer, on grounds of lack of evidence of the performed overtime hours.

The parties were then asked by the Labour Court to confirm their position on whether a transparent time tracking system was put in place within the company, allowing to check the daily working time of the claiming employee, and on the consequences if no such system would exist.

The company did not confirm its position in time, so the Labour Court handled the case without taking into account the company’s position on the aforementioned points.

In its ruling, the Labour Court stated that during litigation proceedings, each party must cooperate in the evidence gathering process, by referring to legal doctrine which supports the distribution of the burden of proof among all parties involved, whereby each party must produce evidence of facts for which it is best placed to produce the evidence needed.

The Brussels Labour Court linked this principle to the aforementioned ruling of the European Court of Justice, and directly applied this ruling to the case at stake, by confirming that an employer is required to have an objective, reliable and accessible time tracking system in place, allowing for the registration of each employee’s daily working time.

If an employer fails to comply with this obligation, then according to the Brussels Labour Court it is up to the employer itself - and not the claiming employee - to demonstrate in one way or another what working hours were performed by the employee, or which working hours for which the employee claims to have performed, were not performed.

In the case at stake, the company did not implement an adequate time tracking system, nor was it able to demonstrate which working hours were or were not performed by the claiming former employee.

Consequently, the Brussels Labour Court granted the claim for overtime compensation to the claiming former employee.

This ruling by the Brussels Labour Court is yet another example of the importance for employers to have a decent time tracking system in place. Employers should not wait for the Belgian legislator to adapt the Belgian laws to the aforementioned ruling of the European Court of Justice, since the decision of the Brussels Labour Court discussed above has already applied this ruling directly, without waiting for initiatives from the Belgian legislator.

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