The Amsterdam Court of Appeal has issued an important ruling for employees who believe that working hours are not paid correctly. The ruling clarifies that failing to keep a record of working hours can cost an employer dearly.
In 2019, the European Court of Justice ruled in CCOO v Deutsche Bank that the EU Working Time Directive  implies that member states must impose an obligation on employers to “to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured”.
This has been implemented in Dutch law in the Working Hours Act. Under article 4.3 of the Act, employers are obliged to “keep proper records in respect of working and rest times”. The Act does not apply to employees earning more than three times the minimum wage (the exception clause).
In this case, the employee claims to have worked significantly more hours than contractually agreed. She estimated the number of overtime hours and claimed payment for them. Her employer, Uber, argues as a defence that the way the employee calculated the number of hours is inadequate, because not all hours between the first and last e-mail on a day could be considered working time. Uber did not submit any working time records.
The Court considered that Uber had an obligation to record the employee’s working hours and had failed to do so. The Court rejected Uber’s defence that the obligation to register did not apply because the employee earned more than three times the minimum wage, so that the exception clause applied. Allowances that the employee received for gym, health insurance, telephone and travel expenses should not have been included in determining whether the employee’s wage exceeded that threshold. The question of whether the limited applicability of the Act is compatible with the Working Time Directive did thus not need answering.
The fact that Uber had not submitted working time records and had only argued in general terms that the employee’s calculation was incorrect meant that the Court found that Uber had not sufficiently refuted the employee’s claims, thus assuming the number of hours worked as calculated by the employee is in fact correct. The Court ordered Uber to pay for the overtime hours worked by the employee (approximately €72,000 gross).
An employee who believes that certain overtime was not paid (correctly) will have to, among other things, state and prove that they had actually worked those hours. This is not always straightforward. Employees regularly fail to successfully bring such claims because they have no evidence of the exact number of overtime hours worked. The Amsterdam Court of Appeal helped the employee in this case by ruling that it was up to the employer (Uber) to submit the working time records in the context of the dispute over the overtime hours claimed by the employee. If the employer fails to do so, the number of hours mentioned by the employee is considered insufficiently disputed. Under Dutch law, the consequence of this is that the employee’s calculation is held to be correct.
This ruling is in line with rulings by two other courts of appeal out of the four courts of appeal in the Netherlands. It is further in line with a recent Supreme Court ruling..While it is true that the employer’s obligation to keep a record of hours in the latter case resulted from the applicable collective agreement (and did not relate to the Act or the EU Working Hours Directive), the Supreme Court’s reasoning is more broadly applicable. Moreover, that ruling was not limited to overtime. The employee also claimed holidays, allowances and surcharges (eg, for work on public holidays) and expenses (eg, accommodation costs). This further increases the importance of keeping a record of working times. Incidentally, the Supreme Court already used the same reasoning in 2003 regarding the question of how many holiday days an employee has left – it is up to the employer to keep records thereof and to submit these records if it disputes the number of remaining holiday days claimed by the employee.
The Uber case raised another interesting point – namely, the question whether limiting the applicability of the Act to employees earning no more than three times the minimum wage was compatible with the EU Working Time Directive. The EU Working Time Directive provides various possibilities to derogate from the relevant provisions in articles 17 to 22, but those possibilities concern specific situations. The only general derogation possibility applies “when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves”. Thus, there is a strong argument that an exception based on the level of pay, as the Act has, is not compatible with the EU Working Time Directive. After all, the level of pay is not a criterion for the existence of special characteristics of the activity that the duration of the working time is not measured and/or predetermined and says nothing about whether an employee can determine working time themselves. In that case, Dutch law on this point would conflict with European law.
This article was written for Lexology’s International Law Office newsletter.
 Directive 2003/88.