Cross-border: Recording of working time, home-working and the burden of proof – a lethal mix?

This ruling has resonated with the business community in many EU countries. It has now given rise to a first Court of Appeal ruling in Belgium. On 22 May 2020, the Labour Court of Appeals of Brussels expressly referred to the above ECJ ruling, forcing an employer to pay overtime in a case where the employee filed an uncorroborated claim to have performed overtime work and where the employer – who did not use a recording system and could therefore not submit the results of any such system – was unable to provide evidence to the contrary. The Brussels case is peculiar on a number of accounts, such as the total lack of co-operation by the employer in the evidentiary process. This passive attitude may well have inspired the judge to readily uphold the employee’s claim, even as this implied a somewhat cavalier interpretation of the basic principles of Belgian law on the parties’ respective obligations in the submission of proof. Under prevailing rules, the basic principle that the onus lies with the claimant ( ‘actori incumbit probatio’ ) still remains one of its cornerstones. Future changes to our evidence rules only allow for the reversal of the burden of proof in very specific circumstances and with specific motivation in the ruling (which didn’t happen here). Moreover, these new rules only come into effect as of 1 November 2020. The question, therefore, remains whether this particular ruling will withstand scrutiny from the Supreme Court.

Whatever the result in that case, it does highlight – as we predicted in our May 2019 Newsletter on the ECJ judgment – the rising significance of fundamental rights in day-to-day employment laws and HR practice. In this respect, the ‘brave new world of work’ following the COVID-19 crisis may not bode well for business. Throughout the industrialised world, working from home is becoming one of the new standards for the organisation of work. Facebook has predicted that in 10 years, half its employees will work from home full-time. Twitter allows its staff to work from home 'forever'. An immediate and obvious feature of home working is the lack of physical control and monitoring by the employer, and the absence of any system to monitor working time by a system such as the now almost obsolete punch clock. Measuring and recording working time – as required by the ECJ, based on fundamental workers’ rights – is a wholly different story when working from home, as opposed to in an office or factory environment under an employer's direct physical control. Therefore, even with all available technology at hand, it may not be that easy for home workers to correctly and properly measure working time as contemplated by the ECJ.

In light of above legal developments and the emerging new world of (home) work after COVID-19, employers and business may be well advised to give serious consideration to practical ways and means of avoiding disputes and mitigating the risk of claims around work schedules, working time, overtime and overtime pay.