In a judgment of 24th November 2010 (09-40928), the French Supreme Court (Cour de cassation), provides guidance on evidence of overtime by an employee.
1) Article L. 3171-4 of the French Labor Code
Under Article L. 3171-4 of the Code du travail:
"In the event of a dispute concerning the existence or the number of hours worked, the employer provides the judge elements to justify the schedules actually made by the employee.
In light of these factors and those provided by the employee in support of his request, the judge forms his conviction after ordering, if necessary, all investigative measures it deems necessary.
If the count of hours worked by each employee is provided with a system of automatic registration, it must be reliable and tamper-proof. “
2) Judgment of 24 November 2010: a written breakdown (décompte écrit) established in writing, month by month, is sufficient
Pursuant to article L. 3171-4 of the French Labor Code, the Court of Cassation calls that, in litigation concerning the existence or the number of hours worked, it is to the employee to prove his claim by producing evidence sufficient specific, about schedules actually made to allow the employer to respond with its own elements.
In this case, the Court of Appeal of Toulouse had dismissed an employee for payment of overtime, because he/she "produced no evidence capable of establishing his/her request when it pays to count debate drawn in pencil, calculated on a monthly basis without further explanation or further particulars."
The Court of Cassation quashed the judgment of the Court of Appeal stating "that the employee had produced a count of the hours she claimed to have made that the employer could respond; the Court of Appeal violated the aforementioned text".
In conclusion, a written breakdown (décompte manuscript) established manuscript in pencil can be used to prove overtime under French law.
This is the employer then who has to prove the contrary by providing its own elements.
Lisa CHEZE-DARTENCET, juriste en droit social
4, rue Bayard
tel: 01 42 89 24 48
Direct Line: 01 42 56 03 00
e-mail : firstname.lastname@example.org