Time registration : the vise is closing

Author: Laurence Philippe (Legal Expert)

Just over a year ago, the European Court of Justice passed a ruling that caused a lot of commotion. In this ruling, it concluded that Member States must impose the requirement on employers to record the working time of employees. So far, there has been no legislative initiative to amend Belgian legislation in this respect.

However, the courts and tribunals of the Member States are obliged to interpret Belgian law in accordance with European case law. This is what the Labour Court of Brussels did almost exactly one year after this ruling. An employer who had not introduced a time registration system was ordered to pay overtime hours applied for by an employee.

European ruling

The Court of Justice interpreted the working time directive in its ruling of 14 May 2019. The Court deduced that 'Member States must impose on employers a requirement to implement an objective, reliable and accessible system for recording the daily working time of each employee.'

Ruling of the Higher Labour Court of Brussels

The Labour Court of Brussels has, as a first step, invited the parties to take a position on the new European case law. In the case concerned, the employer did not reach a conclusion on this issue and did not sufficiently cooperate with the burden of proof.

Normally, it is up to the party alleging a fact to prove it. In this case, it was up to the employee to provide evidence that she had worked overtime. The employer may simply contest these facts. However, the Court specified that such contestation must be precise and well-founded. In addition, the ability of each party to obtain certain evidence must also be taken into account.

In the light of the ruling of the Court of Justice, the Labour Court of Brussels concluded that the employer had an obligation to set up an "objective, reliable and accessible” time recording system and that, failing this, it was up to the employer to show that the overtime hours alleged by the employee had not been worked. Since the employer failed to demonstrate that such a time recording system was in place, or that the overtime hours had not been worked, the employer was ordered to pay the employee overtime.

What are the consequences?

The European working time directive only creates obligations for the Member States, which must incorporate it into their legislation. However, as we have seen in this ruling, the Belgian courts must interpret this legislation in accordance with European case law. This first ruling illustrates this principle and reminds employers of the importance of compliance with working time.

Should we conclude that all companies are obliged to introduce a time clock? Not necessarily, but as an employer you must ensure that the working hours are observed. For example, you can stipulate in your employment regulations that employees may not work overtime without written permission from their manager. Of course, you must ensure that this principle is respected in your company and call your employees to order if they exceed their work schedule without permission. 

You can also have employees complete a document every time they work overtime. Any deviation from the working hours laid down in the work regulations will be recorded in a dated and signed document. This principle will also be included in your employment regulations.

If overtime is worked from time to time, you can also implement a time tracking system. This system does not necessarily have to be a time clock, but can consist of an electronic file filled in daily by the employees. This system must be objective, reliable and accessible, in accordance with European case law.

Source: Brussels Labour Court, 22 May 2020, 2018/AB/424.

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