No Discrimination Against Part-Time Employees
“Part-time” work has become an integral part of German working culture. Around 30% of all employees currently work part-time, with a significantly higher proportion of women – about 50% of working women work part-time, while only around 13% of men do.
According to Section 4 of the Part-Time and Fixed-Term Employment Act (TzBfG), part-time employees must not be treated worse than comparable full-time employees solely because of their part-time work, unless objective reasons justify such treatment.
The prohibition of discrimination covers all employment conditions but primarily relates to remuneration: Part-time employees must be paid at least the equivalent of the share of the working time of a comparable full-time employee (pro-rata-temporis principle).
But what about overtime? Is it legal for part-time workers to only receive overtime surcharges after exceeding the hours of a full-time employee – meaning the first overtime hours are not compensated as overtime? This was the subject of a ruling by the BAG at the end of 2024 (judgment of 05.12.2024, Ref. 8 AZR 370/20).
Review of Collective Overtime Regulations
A woman working part-time as a nurse in an outpatient dialysis practice felt discriminated against by a collective agreement on overtime surcharges for part-time employees.
The applicable collective agreement provided for an overtime surcharge of 30%. However, there was a catch: While full-time employees received the surcharge from the first overtime hour, part-time employees did not. They were only entitled to the overtime surcharge once the total number of hours worked reached the full-time threshold.
This meant that the woman did not receive an overtime surcharge after reaching her individual part-time hours (about 60 hours per month), but only after reaching the general full-time hours (around 160 hours per month), resulting in unjustified unequal treatment and discrimination for the woman.
She sued, wanting to receive the collective overtime surcharge and argued that she was discriminated against because of her gender.
Violation of the Prohibition of Discrimination
The BAG ruled in favor of the woman.
The court saw the regulation as constituting “worse treatment” of part-time employees under Section 4 (1) Sentence 1 of the TzBfG because part-time employees were required to work overtime without additional compensation compared to full-time employees.
Additionally, the regulation was considered indirect discrimination based on gender, violating the general prohibition of discrimination under the General Equal Treatment Act (AGG, Sections 1, 7 AGG). The reason: More women work part-time, especially in the healthcare sector, and indirect discrimination under the AGG occurs when a seemingly neutral rule effectively disadvantages members of one gender. This was the case with the plaintiff, as her employer employed significantly fewer men than women.
So What Now?
With this ruling, the BAG has clarified that part-time employees must receive overtime compensation starting from the first overtime hour. The court did not find any objective reason for unequal treatment.
The judgment is clear in its statement, but the consequences for employers are less so. This type of remuneration, in line with the ruling, would mean that part-time employees could earn more than full-time employees if they worked the same number of hours, due to overtime surcharges. It seems like a paradox…
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Summary of the Key Facts
- Part-time employees must not be discriminated against compared to full-time employees in all aspects of the employment relationship (prohibition of discrimination, Section 4 TzBfG).
- A collective agreement that does not grant part-time employees the same overtime surcharge from the first overtime hour as full-time employees violates the prohibition of discrimination.
- If the majority of those affected by such a regulation are women, the regulation also indirectly violates the prohibition of gender discrimination under the AGG.
