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When public policy rules regarding working time and flexible work organization clash

The Directive 2003/88/EC of the European Parliament dated November 4, 2003 has unified the rules applicable throughout the European Union concerning the organization of working time. Among other things, this directive has inter alia created guidelines regarding minimum resting periods as well as daily and weekly maximum working time.

The rules enacted by the European Parliament have been translated into French Law and have been rigorously applied by judges. This is especially the case when it comes to the determining who bears the burden of proof in litigations relating to working time: while article L. 3171-4 of the French Labor Code provides that in the event of a dispute regarding the existence of the number of hours of work, the burden of proof is shared between the employer and the employee, it is settled case law that when it comes to the respect of the public policy rules deriving from EU Law, the burden of proof lies solely with the employer (FSC, May 23, 2013, n°12-13.015; FSC, February 4, 2015, n°13-20.891).

It is no secret that post-COVID organization has led to profound changes in the way employees work and has ultimately incited companies to promote new working practices such as hybrid work teleworking, flexible working time… With the advent of this new dispensation, some employers may have lost sight of the most basic rules pertaining to the monitoring of working time.

And here comes the Supreme Court, which recently ruled that flexible working arrangements should never lead employees to take liberties with their resting time and with the maximum working time, being noted that employers are responsible for enforcing and monitoring these rules (FSC, December 14, 2022, n°21-18.139).

In the case at hand, an employee who was teleworking 3 days out of 5 committed suicide after telling his psychiatrist that he was exhausted by his workload. The employee’s family sued the company and claimed for the payment of damages on the ground that the employer had failed to comply with the mandatory resting period rules. For its defense, the company argued that the employee had willingly accepted a certain amount of flexibility in the organization of his working time and was therefore free to organize his workload as he deemed fit.

The Court of appeal upheld the arguments put forward by the company and ruled that it had not infringed the resting time legislation considering the fact that the employee was teleworking and was benefiting from a flexible working organization.

The Supreme Court overruled the Court of appeal’s decision and dismissed the company’s arguments. After reminding that the employer is solely responsible for proving that it has respected the resting time and maximum working time legislation, the Supreme Court considered that the Court of appeal had reversed the burden of proof and that it was up to the Company to provide sufficient elements proving that it had effectively ensured that the afore-mentioned rules were observed.

While this decision is not particularly innovative, it is a useful reminder that employers should be cautious when implementing new working mechanisms such as teleworking. This is all the more true that this decision could also be connected to another recent decision from the Supreme Court who admitted that any violation of public policy rules regarding resting time and maximum working time creates an immediate damage to the employee who may automatically be entitled to the payment of damages (FSC, January 26, 2022, n°20-21.636). The employee is therefore exempted from providing evidence of the harm that this situation may have caused him, increasing therefore the risks at stake for employers.

The apparent flexibility that is usually associated with these working schemes should not lead employers to think that they are exempted from a thorough monitoring of the employees’ working time.

The implementation of a coherent “right to disconnect” charter and the organization of regular trainings and/or meetings with employees on the topic of working time should be considered by companies in order to avoid an uncontrolled deployment of these new methods of work organization with all of the excess that they may entail.