Varying night shift bonuses: BAG sees no problem.

 Regular or sporadic night work: Night shift bonuses may vary.

Nikolai Lasaroff

Varying night shift bonuses: BAG sees no problem.

Night shift bonuses are a popular way to supplement pay. Employers may set different night shift bonuses for work at night depending on whether employees work at night regularly or sporadically (BAG, decision dated February 22, 2023, Ref.: 10 AZR 332/20).

Night shift bonuses regulated differently in collective agreements

An employee at a lemonade manufacturer who regularly worked the night shift felt that she was being treated unfairly. The reason: A collective agreement from the “Erfrischungsgetränke-Industrie Berlin und Region Ost” (Berlin and East Region Soft Drinks Industry) granted employees differing night shift bonuses from their employer. Persons who regularly worked the night shift received a 20% bonus. In contrast, employees who worked sporadic night shifts received a 50% night shift bonus.

The employee regarded this as a violation of the principle of equal treatment pursuant to Article 3 of the German Basic Law (GG) and the EU Charter of Fundamental Rights. Accordingly, she sued her employer for payment of 50% shift bonus instead of the previous 20%.

Her key argument: Regular working night shifts is significantly more of a burden than irregular night work.

The employer took a different stance. The different levels of night shift bonuses were justified by the fact that working regular night shifts enabled employees to adjust well to the burden and plan their free time as compensation accordingly. Employees who worked irregular nights were unable to do so. Therefore, regular night work poses less of a burden. A higher night shift bonus was paid to compensate for the greater burden arising from working night shifts sporadically. Therefore, the unequal treatment with regard to night shift bonuses was justified.

Federal Labor Court: Different night shift bonuses in a collective bargaining agreement are legal

The German Federal Labor Court reached a similar opinion regarding the legal situation as unequal treatment would only violate the principle of equality if there was no objective reason for unequal treatment. If an objective reason existed, unequal treatment, such as the different night shift bonuses, would be legally unproblematic.

Like the employer, the court also regarded the different burdens on the employees as the actual reason for the unequal night shift bonuses: Regular night shifts would pose significantly less of a burden than irregular night work. This provides a sufficiently justified reason for the different night shift bonuses. The differing burdens (due to plannability vs. unplannability) had to be compensated for. The means of compensation is left up to the collective bargaining parties.

Previous decision and wave of lawsuits

With the current ruling, the German Federal Labor Court has now ensured legal certainty in such cases.

In 2018, the German Federal Labor Court saw no objective reason for an additional burden arising from the different burdens due to regular and irregular night shifts. This triggered a wave of lawsuits as employees with lower bonuses sued for the possible higher bonuses.

One such case is the ruling discussed here. However, in 2020 the German Federal Labor Court referred the case of the employee at the lemonade manufacturer to the CJEU requesting clarification as to whether such a regulation violated the right to equality pursuant to the EU Charter of Fundamental Rights.

No, ruled the CJEU. This enabled the German Federal Labor Court to reach a final decision. As a landmark ruling, this decision now provides a departure from 2018 case law.

The German Federal Labor Court issued a similar ruling for employees not covered by collective bargaining agreements

Several years earlier, the German Federal Labor Court had already addressed the matter of differing night shift bonuses for parcel delivery staff. However, in this case, the different surcharges were not based on a collective agreement. Yet, even here the court did not regard the differing night shift bonuses, at that time 30% for irregular and 25% for regular night shift work as a problem (BAG, decision dated December 9, 2015, Ref: 10 AZR 423/14).

As a consequence, the case law concerning “unequal” night shift bonuses is now consistent. Employers can rest assured that varying night shift bonuses no longer create a risk of “equal pay” lawsuits.

Summary of the key facts:

  • Collective bargaining agreements may contain unequal night shift bonuses for regular and irregular nighttime work.
  • These differing night shift bonuses do not violate the principle of equality pursuant to Article 3 of the German Basic Law: The different burden serves as an objective justification for the unequal treatment.
  • Lawsuits filed by employees for payment of “equal night shift bonuses” will no longer be successful in the future.