In France, the burden of proof in disputes relating to working time does not fall on one party in particular. In fact, article L. 3171-4 of the French Labour Code stipulates on the one hand that “the employer must provide the judge with evidence of the hours actually worked by the employee” and on the other hand that the judge’s decision must be based on this evidence and the evidence provided by the employee. Consequently, each party must provide evidence to support its position.
In a decision earlier this year, the French Supreme Court applied flexibility to the case law of the Court of Justice of the European Union (“CJEU”) regarding the way in which an employee’s working time must be proved. Following a decision on 14 May 2019, the CJEU has ruled that European Union member states must force employers established on their territory to set up an impartial, reliable and accessible system to measure employees’ daily working time.
But what if an employer has not set up such a system in their company? Would the employer not be able to provide the required evidence to the court?
According to the French Supreme Court, the employer can provide evidence even if it has not set up such a system. Indeed, it states that “the fact that the employer has not set up such a system does not deprive them of the right to submit to the adversarial debate all the legal, factual and evidential elements relating to the existence or the number of hours worked”.
French Supreme Court, Social Division,7 February 2024,22-15.842