The first half-year is now over and many collective bargaining agreements on the fixed number of working days anticipate a half-yearly interview to monitor employees’ workload expressed as a fixed number of working days.
The application of this fixed number of working days may be pushed aside without the monitoring interview. This would mean that the employee reverts to a 35-hour week and that he could, therefore, obtain the payment of overtime worked during the entire period when his workload was not monitored.
Sufficiently convincing proof would, however, need to be provided with regard to the excess hours worked.
Up to a recent period, courts were reluctant to acknowledge the existence of overtime and we approached this type of litigation in a relatively serene manner. In the absence of any precise breakdown of working hours accompanied by ten or so statements from colleagues (which are very difficult to obtain), these applications were generally denied.
However, we have observed a clear shift in court rulings, including the Court of Cassation (Cass. Social Chamber, 5 January 2022, n° 20-22.898; Cass. Social Chamber, 12 January 2022, n° 19-25.428; Cass. Social Chamber, 13 April 2022, n° 20-17.896), which prompts us to sound the alarm.
It is now sufficient for the employee to provide a flat-rate assessment, a rough guess, of the excess hours worked (without any clarification as to the number of hours worked), accompanied by statements from non-professional acquaintances (a spouse, friend or neighbour), for the onus to be on the employer, who must then provide his own proof.
Naturally, the employer’s means of defence are limited as, by definition, he has not recorded the employee’s working time in a fixed number of days.
In a recent case, we had produced statements from the employee’s predecessor and successor both stating that they only occasionally worked excess hours and these were generally made up by taking half-days off. This did not convince the industrial tribunal magistrates and the company was sentenced to pay the equivalent of one-third of the employee’s claim (in addition to social security contributions).
The risks are even greater now that these claims have become systematic since the introduction of the Macron scale resulting in increased contract termination costs, even if termination is warranted.
One way of protecting your company against this increase in costs is to ensure employees’ workload is monitored as a fixed number of working days, according to a schedule set out in the collective agreement, without overlooking certain sensitive items such as remuneration that matches workload. This also supposes that an appropriate interview report is recorded for evidentiary purposes.