Equal pay in the case of part-time employment

In its ruling of January 18, 2023 (docket-no. 5 AZR 108/22), the Federal Court of Labor (Bundesarbeitsgericht - "BAG") decided that part-time employees who are not subject to any instructions from the employer with regard to the scope and location of their working hours, but who can make requests with which the employer is not obliged to comply, may not receive a lower hourly rate of pay for the identical activity if they have the same qualifications than full-time employees who are assigned to work by the employer on a binding basis.

Facts

The ruling of the BAG is based on the following facts: The plaintiff works as a paramedic in a marginal employment relationship with the defendant. The defendant company carries out emergency rescue and ambulance services on behalf of a rescue association. It employs - according to its diction - so-called "full-time" paramedics in full and part time, to whom it paid an hourly remuneration of 17.00 Euros gross in the period in dispute. In addition, so-called "part-time" paramedics work for it, who receive an hourly remuneration of 12.00 Euros gross. This includes the plaintiff. The defendant does not assign the part-time paramedics unilaterally to services, these can rather designate desired dates for employments, which the defendant tries to correspond. However, there is no entitlement to this. In addition, the defendant informs the part-time paramedics of vacant shifts that still need to be filled and asks them to take over a shift at short notice if full-time paramedics are unavailable. The plaintiff's employment contract provides for an average working time of 16 hours per month. In addition, it is stipulated that he may work additional hours and is required to actively seek out shifts.

In his lawsuit, the plaintiff has demanded additional compensation in the amount of 3,285.88 Euros gross for the period from January 2020 to April 2021. He has claimed that the different hourly remuneration compared with full-time employees constitutes discrimination on account of his part-time work. The defendant considers the difference in remuneration to be objectively justified because it has greater planning security and less planning effort with the full-time paramedics. The latter also receive a higher hourly rate of pay because they have to report for certain services on instruction. The labor court dismissed the action. On the plaintiff's appeal, the Regional Court of Labor amended the judgment of the Labor Court and ordered the defendant to pay the required compensation.

Reasons for decision

The defendant's appeal against this was unsuccessful. The Court of Appeal correctly recognized that the lower hourly rate of pay compared to full-time paramedics disadvantaged the plaintiff without any objective reason, contrary to Section 4 (1) of the Part-Time and Temporary Employment Contract Act (TzBfG). The full-time and part-time paramedics are equally qualified and perform the same activities. The increased planning effort in the deployment planning of the part-time paramedics, which is alleged by the defendant in a general manner, does not constitute an objective reason to justify the unequal treatment. It is already not recognizable that this effort is significantly higher when taking into account the required "24/7 duty planning" and the public law requirements for staffing the ambulances. Even if one assumes that the defendant has more planning security through the use of full-time paramedics, because it can unilaterally assign shifts to them, it is not free in this respect. Rather, it is subject, among other things, to limits set by the Working Hours Act with regard to the duration of working hours and the observance of rest breaks. In this respect, the part-time paramedics form their deployment reserve. It is irrelevant that they are free to organize their working hours. In this respect, the defendant fails to take into account that this group of persons is not entitled to be assigned the desired services, neither in terms of location nor in terms of time. The fact that an employee must report for certain duty times on the instructions of the employer does not justify, in the required overall view, a higher hourly remuneration compared to an employee who is free to accept or refuse services.

Notes for practice

The central subject of the decision is the question of whether the differentiated remuneration of full-time and part-time paramedics is justified by an objective reason. The BAG correctly answered this question in the negative. An objective reason is only given if there are objective reasons that correspond to a real need of the company and are appropriate, suitable and necessary for achieving this goal. Objective reasons for justification can arise from the employee's work performance, workload, qualifications, training, responsibility, professional experience or different work and job requirements. By contrast, the additional planning effort alleged by the defendant in a blanket statement does not satisfy the requirements of an objective reason.