The ECJ recently found that a provision in a German collective agreement on overtime pay potentially violated the prohibition of discrimination against part-time employees as well as the prohibition of discrimination on grounds of gender.

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EU law prohibits employers from treating part-time employees less favourably than comparable full-time employees, unless such treatment is justified by objective reasons. Furthermore, EU law prohibits direct and indirect discrimination on grounds of gender.

The case concerned two part-time care assistants employed at a German provider of dialysis services for kidney patients. All the dialysis provider’s employees were covered by a collective agreement according to which the employer only had to pay overtime pay for hours worked beyond the average working hours of 38.5 hours per week for a full-time employee.

The care assistants brought an action before a German court, claiming that they were discriminated against compared to their full-time co-workers based on the above-mentioned provision in the collective agreement. The care assistants also claimed gender discrimination, as approximately 85% of the dialysis provider’s part-time employees were women.

The national court referred questions to the ECJ for a preliminary ruling about the interpretation of EU law in relation to the protection against discrimination of part-time employees as well as the prohibition of discrimination on grounds of gender.

Discrimination established
As regards the interpretation of the prohibition of discrimination against part-time employees, the ECJ stated, among other things, that in the assessment of whether the part-time employees perform the same or similar work and can therefore be said to be comparable, ”it must be determined whether, in the light of a number of factors, such as the nature of the work, training requirements and working conditions, those persons can be regarded as being in a comparable situation”.

The ECJ further stated that if part-time employees carry out the same duties as full-time employees for the same employer or hold the same post as them, the two employee categories must generally be regarded as being comparable. However, the ECJ also clarified that, in accordance with usual practice, it is for the national court to decide this question.

Since the pay of part-time employees must be proportionately the same as that of comparable full-time employees, the ECJ held – subject to the national court’s review of the specific circumstances – that the provision in the collective agreement constituted unlawful discrimination against part-time employees unless it could be regarded as being justified by objective grounds.

The ECJ initially stated that this assessment must take into account “the specific nature of the tasks” which the employees in question are employed to perform as well as “the inherent characteristics of those tasks or, as the case may be, from the pursuit of a legitimate social policy objective”.

With respect to the specific case, the ECJ stated – once again subject to the national court’s power of final review – that the reasons provided in the case for the part-time employees only being entitled to overtime pay when reaching the full-time threshold in the area could not be considered to be justified by the necessary “objective grounds”. In this connection, the ECJ referred, among other things, to the fact that the regime in the specific case – and this was also pointed out by the referring national court – actually encouraged the employer to impose overtime on part-time employees rather than full-time employees.

As for the issue of gender discrimination, the ECJ ruled that it constitutes unlawful indirect discrimination if it can be established that, in practice, the provision on overtime pay in the collective agreement places women in a less favourable position than men and such difference in treatment cannot be regarded as being objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

The ECJ then referred to the fact that when reviewing the first question, the national court may, among other things, consider statistical evidence on the number of women and men, respectively, who are adversely affected. In this context, the ECJ mentioned that, according to the information provided in the case, the dialysis provider had more than 5,000 employees and 76.96% of such employees were women. Of all those employees, 52.78% worked part-time, of whom 84.74% were female and 15.26% were male. In the group of full-time employees, 68.20% were female and 31.80% were male. Consequently, the ECJ mentioned the fact that there was ”a majority” of women both in the group of part-time employees and in the group ”which is ‘placed at an advantage’”, but the ECJ also stressed that it is for the national court to make the final review of this question.

In addition, the ECJ ruled that in the assessment of whether discrimination can be considered objectively justified by a legitimate aim, it is not sufficient to refer – as the dialysis provider did in this case – to the fact that the purpose of the relevant provision is to prevent employers from requiring employees to work more hours than agreed individually in their employment contract and to prevent full-time employees from being treated less favourably than part-time employees.

Norrbom Vinding notes

• that the ruling shows that a provision according to which part-time employees are only entitled to overtime pay when their working hours exceed the average norm for full-time employees may in certain situations be in conflict with the prohibition of discrimination against part-time employees;

• that such a provision may also constitute unlawful discrimination on grounds of gender if a particular gender is over-represented in the group of part-time employees who are disadvantaged as a result of the provision and the discrimination is not objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary; and

• that the ruling is likely to give rise to challenges in several industry sectors that have similar provisions on overtime pay in collective agreements and where many employees work part-time, so it is expected that both the social partners and the Ministry of Employment will now analyse the ruling carefully to assess whether there is a need and opportunity for legislative initiatives in this area.

   

The content of the above is not, and should not be a substitute for legal advice.