Employers failing to monitor working hours may still submit any evidence to defend against overtime claims.
Cass. soc., 7 February 2024, n° 22-16.323 & n° 22-15.842
Employers failing to monitor working hours in compliance with French regulations may still submit any evidence to defend against overtime claims, says the French Supreme Court.
French employment law generally mandates employers to keep track of working hours:
unless all employees in a given department follow the same working time schedule, employers are required to keep track of the working hours and rest periods of each employee;
in practice, this monitoring exercise may materialize in a variety of ways, from handwritten records to more sophisticated HR tools; in case of automated monitoring of working hours, French regulations require such tracking system to be "reliable and tamper-proof";
Likewise, EU case-law specifies that working time monitoring tools must be "objective, reliable and accessible".
Overtime disputes hinge on evidence. Employees provide sufficient evidence to demonstrate how many hours were actually worked (case-law tends to set a rather low standard of proof in this respect) and it is up to employers to respond with contradictory evidence.
In the case at hand, the Bourge Court of appeal had rejected the employee's overtime claim. The claimant argued before the French Supreme Court that, because the employer's evidence was not supplied by an "objective, reliable and accessible" monitoring tool (i.e. according to the claimant, the employer relied on activity reports drawn up by the employees themselves), it had to be disregarded.
This argument did not fly: employers have a right to raise any legal argument and present any evidence to defend against working time claims, even if no working time monitoring tool has been implemented in compliance with the applicable regulations.
Sources : Cour de cassation, chambre sociale, 7 February 2024, n° 22-16.323 et n° 22-15.842