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4 September 20236 minute read

Be Aware - September 2023

Overtime hours: Indirect evidence is still evidence

In its judgement of 14 May 2019, the European Court of Justice held that the Working Time Directive requires companies to have a time registration system. This is because it’s only possible to verify whether the employer respected the allowed maximum number of working hours if there’s clear data on how many hours an employee actually worked.

Under Belgian law there’s no general obligation to have a time registration system. This is only expressly foreseen if employees use a system of gliding working hours.

Employment Tribunals regularly deal with cases where a worker says they’ve worked more hours than the normal working schedule, but they haven’t been paid for those hours. Generally, these claims come after the termination of the employment contract and are added to the claims concerning the termination. Without a time registration system, it’s difficult for an employee to prove the precise number of hours worked.

The Employment Tribunal of Liège dealt with a case like this in its judgement of 14 March 2023. The case concerned an employee whose work consisted of ironing clothes. She worked at home, and the company did not use a time registration system. After the termination of the employment contract, the employee claimed she was never paid for a considerable number of hours worked, so she claimed arrears.

The Employment Tribunal first pointed out that in the light of the case law of the European Court of Justice, there should have been a time registration system allowing the employee to establish the precise number of working hours to enforce the rules on the maximum number of working hours. While the Employment Tribunal can only take note of this gap in Belgian law, it also should bear in mind that courts have a duty to construe national law to the extent possible in a way that meets the objective of the European legislation.

The Employment Tribunal also reminded that while the basic rule of procedural law is that the plaintiff bears the burden of proof, the defendant also has a duty to cooperate in good faith with the Employment Tribunal to allow the Employment Tribunal to discover the factual elements.

The employee submitted time sheets which she had completed herself. These timesheets were not checked or signed by the employer. The employer said the data was only collected for invoicing purposes. The data only showed the quantity of clothes the employee had ironed and did not specify the working hours.

The Employment Tribunal took note of the fact the joint committee had estimates of the number of clothes the average worker irons in an hour. In the absence of data allowing a more accurate assessment of the working time, the Employment Tribunal concluded that the most equitable solution for the dispute was to calculate arrears by applying those averages to the data on the quantity of clothes ironed by the employee in question.

This judgement should be seen in the light of a growing tendency in the case law whereby if the worker can show they’ve worked extra hours that were not paid, but not the precise number of hours, Employment Tribunals increasingly grant arrears by assessing the number of hours worked as accurately as possible, even if this assessment is not 100% certain.


What happens when an employer overpays an employee?

Sometimes an employer makes a payment to an employee and it later turns out that the payment was not due. There are various reasons for this. For instance, the monthly pay might be paid when the month is not yet over and the pay for some days at the end of the month might not actually be due. Or the employee might not fulfil conditions to be entitled to variable remuneration. Or it could simply be an error.

So how can the employer recover the amount that was not due?

The easiest solution would of course be to deduct the amount from the employee’s next payment. But article 23 of the Act of 12 April 1965 on the protection of the employee’s remuneration includes an exhaustive list of the deductions an employer can make on remuneration. And recovering undue payments is not on the list.

The list of authorised deductions does include advanced payments. But it’s established case law that this only concerns payments expressly presented as being advanced payments on the social documents. In practice, this mainly covers blue-collar workers, who should be paid an advanced payment after 15 days and at the end of the month the balance of the remuneration is due for the month in question. For white collar-workers, there is no such obligation to effect a payment every 15 days, so they can be paid the amount due for the month in question.

In a judgement of 12 December 2022, the Supreme Court repeated that an undue payment cannot be considered as an advanced payment. The case concerned a worker who successfully challenged the applicable joint committee. The decision meant the worker could claim the benefits stipulated by the collective bargaining agreements of the correct joint committee, but also that the benefits of the joint committee the employer wrongly considered to be applicable were not due. The employer wanted to deduct the amount to be returned from the amount still to be paid, but this was contested by the worker. Both Employment Appeal Tribunal and the Supreme Court ruled in favour of the worker, so the employer had to pay all benefits of the correct joint committee and had to start a separate procedure to recover the paid benefits that were retroactively considered not to be due.

The 1965 Act on the protection of the employee’s remuneration does allow deductions for the payment of a fine imposed as a disciplinary sanction (provided all conditions for formal disciplinary sanctions are met), and the amount owed by a worker for damage caused during the performance of the employment contract. In both cases, the deduction is capped at 20% of the net pay, unless the worker has terminated the employment contract.

If the employer made an undue payment, they need to get the worker’s approval to deduct the amount to be repaid from other amounts due by the employer.

The employer has, however, a powerful tool to convince the worker to sign such an agreement. While the Act of 12 April 1965 on the protection of the employee’s remuneration restricts the withholdings an employer is allowed to effect on the remuneration, holiday pay is excluded from the definition of “remuneration” under the Act. When it comes to holiday pay, compensation is possible if the employer has a claim on the worker that is not contested. If the worker refuses an agreement on the undue payment, the employer can wait until holiday pay becomes due and deduct the undue payment from the net holiday pay.