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Discrimination against part-time employees with regard to overtime pay

A provision in a collective agreement that requires the regular working hours of a full-time employee to be exceeded for overtime pay, regardless of the individual working hours, treats part-time employees less favorably than comparable full-time employees due to their part-time work and violates the prohibition of discrimination against part-time employees, according to the Federal Labor Court on December 5, 2024 (8 AZR 370/20).

Facts of the case

The ruling of the Federal Labor Court (BAG) is based on the following facts: The defendant is an outpatient dialysis provider with more than 5,000 employees. The plaintiff works for him as a part-time nurse to the extent of 40% of a full-time employee. The employment relationship is subject to the general collective agreement (MTV) concluded between the defendant and the trade union ver.di on the basis of a reference in the employment contract. Pursuant to Section 10 (7) sentence 2 of the MTV, overtime worked in excess of the monthly working hours of a full-time employee and which cannot be compensated by time off in the respective calendar month is subject to a supplement of 30%. As an alternative to payment of the bonus, a corresponding time credit is provided for in the working time account. At the end of March 2018, the plaintiff's working time account showed a working time credit of 129 hours and 24 minutes. The defendant neither paid the plaintiff overtime bonuses for these hours in application of Section 10 (7) sentence 2 MTV nor credited time to the working time account.

In her lawsuit, the plaintiff demanded that a further 38 hours and 39 minutes be credited to her working time account as overtime pay. She also claimed compensation in accordance with Section 15 (2) AGG in the amount of a quarter's earnings. The application of Section 10 (7) sentence 2 MTV put her at an unlawful disadvantage towards comparable full-time employees due to her part-time work. At the same time, she is indirectly disadvantaged because of her gender, as the defendant predominantly employs women on a part-time basis.

The labor court dismissed the claim in its entirety. The Regional Labor Court granted the plaintiff the requested time credit and confirmed the dismissal of the action with regard to the requested compensation.

In its decision of October 28, 2021 (8 AZR 370/20), the Senate suspended the appeal proceedings and asked the Court of Justice of the European Union (CJEU) to answer legal questions regarding the interpretation of Union law. The ECJ did so in its ruling of July 29, 2024 (C-184/22 and C-185/22 [KfH Kuratorium für Dialyse und Nierentransplantation eV]) and affirmed possible unequal treatment.

The invalidity of the collectively agreed overtime bonus provision resulting from the breach of Section 4 (1) TzBfG leads to a claim by the plaintiff for the additional time credit claimed. In addition, she is entitled to compensation pursuant to Section 15 (2) AGG. Through the application of the collective agreement regulation, the plaintiff also experienced indirect discrimination on the grounds of gender. More than 90% of the group of part-time employees at the defendant who are subject to the personal scope of application of the MTV are women. An amount of EUR 250.00 should be set as compensation.

This was necessary, but also sufficient to compensate the plaintiff for the non-material damage caused by the indirect gender discrimination on the one hand and to have the necessary deterrent effect towards the defendant on the other.

Practical note

The BAG's decision, which is only available as a press release so far, is consistent in view of the referral proceedings and the ECJ's decision. However, it is doubtful whether it is the last word on unequal treatment in overtime pay. The ECJ clarified that the justification of unequal treatment depends on the objective pursued by the parties to the collective agreement with an overtime regulation. The justification summarized by the BAG in the preliminary ruling proceedings did not convince the ECJ. However, it is conceivable that a reasonable justification could constitute a sufficient objective reason for the unequal treatment of part-time and full-time employees. Furthermore, it is questionable how to assess the fact that a part-time employee who works overtime in excess of the working hours of a full-time employee ultimately receives special remuneration for this while the full-time employee “only” receives their contractual basic remuneration. As a result, the part-time employee is then in a better financial position.

The BAG has remained true to its position with regard to the compensation claim, which, as usual, is rather low and also falls short of the plaintiff's claim.

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