EN
HR Legal

Equal play, equal pay

logo
Legal news
calendar 26 November 2023
globus Denmark, Norway, Sweden

A German airline was covered by a collective agreement that had a rule on additional pay for hours worked in excess of the individual working time. The threshold was identical for part-time and full-time employees. Despite that the European Court of Justice found that it was unlawful discrimination if part-time employees only received overtime pay once they exceeded the threshold for full-time employees. The conclusion may significantly impact special pay schemes across member states.

Share video

A pilot was employed by a German airline since 2001. He worked part-time since 2010, corresponding to 90% of the working time for a full-time pilot. Therefore, his salary was also reduced by 10% compared to a full-time pilot.

He was covered by a collective agreement providing that employees who flew more than the threshold corresponding to a full-time employee would receive additional pay. However, he believed that the threshold should be reduced proportionately for part-time employees. That way, part-time employees would receive additional pay when they worked more than their working time.

The German Federal Labour Court initially decided in favor of the employee, but a decision in a later appeal reached the opposite conclusion. Therefore, the German court asked the European Court of Justice whether it was lawful to have the same threshold for additional pay for part-time and full-time employees.

Same terms resulted in discrimination

The European Court of Justice ruled that it was unlawful discrimination for part-time employees to have the same threshold for additional pay as full-time employees.

It emphasized the prohibition of discriminating against employees based on whether they work part-time or full-time unless such discrimination is objectively justified. The company attempted to justify the threshold by referring to the fact that the employees were compensated for the particular workload that put a strain on their health when working more than the full-time threshold.

Additionally, the company also emphasized that the threshold was objectively justified by the fact that the employees should only be paid when they worked an unreasonable amount of time. The reason was that the amount of work would only be considered unreasonable when they exceeded the full-time threshold. The intention was to discourage companies from making employees work more than full-time.

IUNO’s opinion

The principle of having the same threshold for when part-time and full-time employees receive additional pay exists in many collective agreements. The ruling states that discrimination is unlawful unless such discrimination is objectively justified.

It remains unclear how the ruling will affect the labour markets, but changes will likely be proposed for some collective agreements.

IUNO recommends that companies adjust thresholds proportionally for employees working part-time compared to full-time. There are no rules on how companies should offer proportionate terms when such terms cannot be adjusted accordingly. One example could be terms when employees work remotely. If the term can be converted to a cash value, companies are likely to compensate part-time employees accordingly.

[The European Court of Justice judgment of 19 October 2023 in case C-660/20]

A pilot was employed by a German airline since 2001. He worked part-time since 2010, corresponding to 90% of the working time for a full-time pilot. Therefore, his salary was also reduced by 10% compared to a full-time pilot.

He was covered by a collective agreement providing that employees who flew more than the threshold corresponding to a full-time employee would receive additional pay. However, he believed that the threshold should be reduced proportionately for part-time employees. That way, part-time employees would receive additional pay when they worked more than their working time.

The German Federal Labour Court initially decided in favor of the employee, but a decision in a later appeal reached the opposite conclusion. Therefore, the German court asked the European Court of Justice whether it was lawful to have the same threshold for additional pay for part-time and full-time employees.

Same terms resulted in discrimination

The European Court of Justice ruled that it was unlawful discrimination for part-time employees to have the same threshold for additional pay as full-time employees.

It emphasized the prohibition of discriminating against employees based on whether they work part-time or full-time unless such discrimination is objectively justified. The company attempted to justify the threshold by referring to the fact that the employees were compensated for the particular workload that put a strain on their health when working more than the full-time threshold.

Additionally, the company also emphasized that the threshold was objectively justified by the fact that the employees should only be paid when they worked an unreasonable amount of time. The reason was that the amount of work would only be considered unreasonable when they exceeded the full-time threshold. The intention was to discourage companies from making employees work more than full-time.

IUNO’s opinion

The principle of having the same threshold for when part-time and full-time employees receive additional pay exists in many collective agreements. The ruling states that discrimination is unlawful unless such discrimination is objectively justified.

It remains unclear how the ruling will affect the labour markets, but changes will likely be proposed for some collective agreements.

IUNO recommends that companies adjust thresholds proportionally for employees working part-time compared to full-time. There are no rules on how companies should offer proportionate terms when such terms cannot be adjusted accordingly. One example could be terms when employees work remotely. If the term can be converted to a cash value, companies are likely to compensate part-time employees accordingly.

[The European Court of Justice judgment of 19 October 2023 in case C-660/20]

Receive our newsletter

Anders

Etgen Reitz

Partner

Søren

Hessellund Klausen

Partner

Kirsten

Astrup

Managing associate (on leave)

Cecillie

Groth Henriksen

Senior associate

Johan

Gustav Dein

Associate

Similar

logo
HR Legal

25 February 2024

A salary freeze is not always a breeze in the Nordics

logo
HR Legal

25 February 2024

Next stop, neutrality town!

logo
HR Legal

25 February 2024

Money speaks louder than words

logo
HR Legal

16 February 2024

New stock options, old rules

logo
HR Legal

16 February 2024

Whistleblower on the slaughter bench

logo
HR Legal Litigation

1 February 2024

Work environment representatives receive longer notice periods

The team

Alexandra

Jensen

Legal advisor

Anaïs

Kjærgaard Crouzet

Associate

Anders

Etgen Reitz

Partner

Caroline

Thorsen

Junior legal assistant

Cecillie

Groth Henriksen

Senior associate

Johan

Gustav Dein

Associate

Julie

Meyer

Senior legal assistant

Kirsten

Astrup

Managing associate (on leave)

Maria

Kjærsgaard Juhl

Legal advisor

Sofie

Aurora Braut Bache

Managing associate

Søren

Hessellund Klausen

Partner