In its decision dated 22 June 2026 and numbered 2026/3235 E., 2026/6033 K. (“Decision”), the 9th Civil Chamber of the Court of Appeal emphasised that, under employment contracts providing for overtime pay to be included in the monthly salary, it must be determined whether the annual limit of 270 hours has been exceeded before proceeding to weekly calculations.
Previous case law had already established that contractual provisions stipulating that overtime pay is included in the monthly salary may apply to a maximum of 270 hours of overtime work per year, with the applicable deductions corresponding to 22.5 hours per month and 5.2 hours per week, and that the annual limit must be reduced proportionately where the period of employment is shorter than one year.
The Decision clarifies that the employee’s total annual overtime hours must be assessed without distinguishing between periods in which overtime work was performed and those in which it was not. This approach highlights the importance of assessing the annual total before proceeding to weekly calculations, particularly in workplaces where overtime work is concentrated in certain periods of the year.
In the present case, the Court of Appeal found that the failure to take into account the contractual provision stipulating that overtime pay was included in the monthly salary, as well as the failure to exclude the period during which the employee was on certified medical leave from the calculation of overtime pay and weekly rest day pay, was erroneous. On these grounds, the Court set aside the decision of the Court of Second Instance and quashed the judgment of the Court of First Instance.
How Does the Decision Affect the Calculation of Overtime Pay?
The Court of Appeal set out the following principles, subject to the existence of a valid contractual provision, payments made accordingly, a monthly base salary exceeding the statutory minimum wage, and a monthly salary sufficient to cover remuneration corresponding to 22.5 hours of overtime work:
- Where the total proven annual overtime does not exceed 270 hours, no additional overtime pay is to be calculated.
- Where this limit is exceeded, the calculation must be based on overtime work exceeding 5.2 hours per week.
- Where the employee’s period of employment is shorter than one year, the annual limit of 270 hours must be reduced proportionately according to the number of months worked.
Accordingly, the fact that an employee performs more than 5.2 hours of overtime in certain weeks does not, in itself, give rise to an entitlement to additional overtime pay where the total annual overtime does not exceed the applicable limit.
What Are the Practical Implications for Employers?
In light of the Decision, we recommend that employers assess contractual provisions, salary levels and actual payments together with annual working time records when evaluating overtime pay claims. Particularly in workplaces where overtime work is concentrated in certain periods of the year, it is important to ensure that calculations are not based solely on weeks during which overtime work was particularly intensive.
