Are 250,00 EUR deterrent?
Gender-based discrimination
On December 5, 2024, the Federal Labor Court (BAG) ruled that part-time employees, just like full-time employees, are entitled to overtime premiums (Zuschläge) from the very first hour. Furthermore, the BAG found that the unequal treatment of part-time and full-time employees without an objective justification constitutes gender-based discrimination and awarded compensation of 250,00 EUR.
*where only the masculine form is mentioned in this article, the feminine / diverse form is also included
Federal Labour Court, verdict of 5th December 2024 - 8 AZR 370/20 (pr)
Summary of the press release from the Federal Labor Court (BAG)
The parties are in dispute regarding the plaintiffs claim for overtime premiums (Überstundenzuschläge) as well as compensation under the General Equal Treatment Act (AGG).
The plaintiff is employed as a part-time caregiver by the defendant. The applicable collective agreement for the employment relationship stipulates that overtime is only paid with a 30% premium if it exceeds the monthly working hours of a full-time employee. The plaintiff requested the premium for the first hour of overtime worked in her part-time employment relationship, as well as compensation for discrimination in the amount of 4,500.00 EUR. More than 90% of the part-time employees at the defendant’s company are women.
The labor court rejected the claim in its entirety, while the regional labor court granted only the overtime premium and rejected the remainder of the claim. The Federal Labor Court (BAG) suspended the proceedings and asked the European Court of Justice (ECJ) for an interpretation of the EU legal provisions. The ECJ ruled that the collective agreement term violates the prohibition of discrimination against part-time employees, as no proportional adjustment to the overtime rules for part-time employees is provided (ECJ, judgment of July 29, 2024 - C-184/22 and C-185/22 [KfH Curatorium for Dialysis and Kidney Transplantation e.V.]).
The plaintiff's appeal was partially successful before the 8th Senate of the BAG. The Senate granted the requested overtime premium as time credit – in accordance with the regional labor court – and additionally awarded compensation in the amount of 250,00 EUR. Based on the ECJ’s ruling, the Senate concluded that the collective agreement provision was invalid due to a violation of the prohibition against discrimination of part-time employees. The Senate could not identify any legitimate reason for this unequal treatment. The invalidity of the provision under § 4 (1) of the TzBfG results in the plaintiff's entitlement to the claimed amount. Furthermore, the Senate granted compensation under § 15 (2) AGG, as the claimant was indirectly discriminated against due to her gender. More than 90% of the part-time employees, who fall within the personal scope of the collective agreement, are women. The amount of 250,00 EUR was deemed sufficient to compensate for the non-material damage and to create a deterrent effect against the defendant.
Conclusion & practical tip
Part-time employees are entitled to the same overtime premiums (Überstundenzuschläge) as their full-time counterparts from the first hour, provided there is a relevant regulation, and they can claim this right. Unequal treatment between part-time and full-time employees without an objective justification constitutes indirect discrimination based on (female) gender, particularly when a significant proportion of the part-time employees are women. This gives rise to compensation claims. It remains to be seen how the Federal Labor Court will justify the deterrent effect of the compensation of 250,00 EUR once the reasoning for the decision is available.
Author of this article: Janina Aue, Lawyer & Mediator
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