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Employers, employees: the burden of proof for overtime is shared!
Regarding a decision of the social chamber of the Court of Cassation of 02 October 2019 (appeal no. 18-10.684)
Article L. 3171-4 of the Labour Code states that in the event of a dispute concerning the existence or number of hours worked, the employer must provide the judge with evidence of the hours actually worked by the employee.
In practice, the burden of proof must be on both the employer and the employee in order to assess the evidence submitted to the debate in a sovereign manner.
The employee must provide prima facie evidence that he/she has worked overtime: table, e-mails sent at certain times, record, diary, screen capture allowing the date and time to be checked, etc. ....
The employer will have to prove that the employee did not work overtime by providing concrete evidence.
In this case, an employee claimed overtime pay.
The Court of Appeal dismissed the employee's case on the grounds that the evidence provided was insufficient.
The High Court criticised the trial judge for not having explained the summary table of overtime hours produced by the employee.
It is important to keep an up-to-date summary of overtime hours for both the employer and the employee and to have all the evidence to prove whether or not overtime was worked.
This will make it easier to win a case in the event of a dispute.
Cécile ZAKINE stresses the need to protect oneself against written documents in the context of the employee relationship in any area whatsoever (misconduct, overtime, leave, disputes, etc.) and supports both employers and employees in managing their business overtime.
