Time registration obligation: what if you do not have one (yet)?

Time registration obligation: what if you do not have one (yet)?

By Deloitte Legal

The Court of Justice of the European Union (CJEU) ruled in a 14 May 2019 judgment that Member States should provide for mandatory time recording in their legislation. Although Belgium does not have such an obligation so far, the Court’s judgment is not without consequences. This is already evident from a 22 May 2020 judgment by the Labour Court of Brussels, according to which, an employer without a time registration system can no longer assume a purely passive role when an employee claims overtime arrears (without sufficient proof due to a lack of time registration data). The employer will itself have to provide the necessary evidence to dismiss the claim or will risk an order to pay the claimed amount.

1. CJEU’s 14 May 2019 judgment

1.1. Facts

A trade union brought a court action against Deutsche Bank before the Spanish Audiencia Nacional, to compel it to introduce a time registration system so that trade unions can monitor compliance with working time limits and overtime worked.

The Spanish court finds that Deutsche Bank has indeed not set up any time registration system. Only days of absence are recorded, but not the number of (overtime) hours worked. It submits three preliminary questions to the CJEU to determine whether European Union law precludes legislation of a Member State that does not oblige employers to provide a system that measures the daily working time of each employee.

1.2. Assessment

In its judgment of 14 May 2019, the CJEU ruled that each Member State must require employers to have an objective, reliable and accessible system for recording the working time of each worker. Without such a system, compliance with the working time limits and rest periods, provided for in the Working Time Directive and the Charter, cannot according to the Court, be ensured. This is particularly the case in the employment relationship because, as the weaker party, the worker may be prevented from exercising their rights by fear of employer retaliation.

2. Brussels Labour Court judgment of 22 May 2020

On 22 May 2020 and with reference to the CJEU judgment, the Labour Court of Brussels ruled that the employer is indeed obliged to set up an objective, reliable and accessible system for recording the daily working time of each employee. Furthermore, in the absence of such a system, it is up to the employer to prove which working hours were performed; at least proving that the performed hours claimed by the employee were not actually performed.

In particular, the Labour Court states that although it is in principle up to each party to prove what it claims, it must be assumed in civil cases that the burden of proof cannot depend solely on an accidental procedural position as plaintiff or defendant, but may be determined based on a litigant's ability to produce evidence. In relation to overtime, the court thus considers (also based on the CJEU judgment) that the employer is best placed to provide the necessary evidence.

3. Introduction of time-recording system unavoidable?

The Working Time Directive is a European directive, i.e. a rule that is not directly applicable in Belgium. A European directive is only binding with regard to the result to be achieved. Belgium must therefore take all necessary measures to guarantee maximum weekly working hours and minimum rest periods. The CJEU is of the opinion that this is only possible with an objective, reliable and accessible time registration system.

There is currently no general obligation in Belgian labour law to introduce a time registration system. A time registration system is only compulsory when applying flexible work schedules or when deviating from the part-time work schedule. Therefore, Belgian legislation does not seem to be in line with the Working Time Directive in light of the CJEU’s 14 May 2019 judgment.

Belgium will have to adjust its legislative framework and oblige employers to have a time registration system, or at least provide for other rules ensuring the protection of workers under the Working Time Directive. Even in the context of a directive compliant interpretation, a judge is not in a position to impose the introduction of a time registration system on an employer, outside cases provided for by law.

However, the CJEU’s judgment was not only based on the Working Time Directive but also on the Charter of Fundamental Rights of the European Union, Article 31.2 of which states that "Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave". Previously, in a case on holiday rights, the CJEU had ruled that the Charter could have a direct effect, and that a worker could derive rights from it in their relations with other private individuals or entities.

In light of this case law, it cannot be excluded that an employee could claim the implementation of a time registration system from their employer, in order to ensure that their rights contained in Article 31.2 of the Charter are sufficiently safeguarded. With its judgment of 22 May 2020, the Labour Court of Brussels is already heading in the same direction, where it states that it is indeed the employer's obligation to set up an objective, reliable and accessible system for recording the daily working time of each employee.

Moreover, the Labour Court of Brussels also appears to take into account the practical difficulty for an employee to prove worked hours in the absence of a time registration system, and shifts the burden of proof to the employer, at least in part. Therefore, if the employer has not implemented an objective, reliable and accessible time registration system, a judge may require them to prove that advanced working hours were not performed. It is not yet clear how easily this burden of proof would be transferred to the employer with the associated risk.

Even in the absence of a legal obligation to implement a time registration system, it may therefore be appropriate for an employer to set up a time registration system that offers sufficient quality guarantees. It is important that the system allows that all hours are recorded in an objective and transparent manner with the necessary safeguards against unrecorded hours of work. This may be an electronic system (an app or modern time clock system), but it does not appear to be absolutely necessary as long as the necessary guarantees can be provided. Various options are open to the employer, who will have to ensure that the system is embedded in a flexible working arrangement, with control over salary costs, which in itself must be feasible.

If you have any questions concerning the items in this blog, please get in touch with your usual Deloitte Legal - Lawyers contact at our office in Belgium or with Stijn Demeestere (+ 32 2 800 71 42) or Karel De Schoenmaeker (+32 2 800 71 69).

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