A gas station operator employed full-time staff in his gas station shop with fixed working hours and an hourly wage of 15 DM per hour, as well as part-time staff to help out at an hourly wage of 13 DM. One of the part-time employees was a student and did not agree with the unequal treatment. She filed a lawsuit for payment of the difference in wages of 2 DM per hour retroactively for a period of 2 years, totaling 5,418 DM plus interest.
The employer defended itself against this claim by asserting that the plaintiff was not comparable to full-time employees because she was a student and did not have to adhere to fixed working hours. Furthermore, the plaintiff's claims had lapsed due to the cut-off period for asserting claims provided for in the collective agreement, insofar as they were older than three months.
In its judgment of April 25, 2001, the Federal Labor Court (Bundesarbeitsgericht - BAG) ordered the employer to pay the difference in wages for the entire retroactive period. Pursuant to § 2, Subsection 1 of the Employment Promotion Act (since January 1, 2001, § 4, Subsection 1 of the Part-time and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz, TeilzeitBefrG)), an employer may not pay a part-time employee less than a full-time employee because of the part-time work, unless objective reasons justify the different treatment. Any contractual remuneration agreement that deviates from this principle is null and void. This means that the employer is obliged to pay the usual remuneration, which is based on the remuneration of full-time employees (in this case, also 15 German Marks per hour for the student).
In this ruling, the Federal Labor Court explicitly recognizes that the employer can agree different wages with its employees – including for full-time and part-time employees – but that the principle of equal treatment must be applied as soon as the employer grants the remuneration according to a certain recognizable and generalizing principle. For example, if all full-time employees receive the same wage and all part-time employees are paid a lower wage. According to the court's findings, the employer differentiated the amount of remuneration solely on the basis of whether the employees were employed full-time or only as part-time temporary staff. This differentiation was not considered relevant by the BAG, although the part-time employees were allowed to co-determine the extent and the timing of their working hours. As the BAG had already decided once before, the greater freedom granted to a part-time employee in organizing their working hours is not an objective reason for lower pay. In the opinion of the Federal Labor Court, the fact that the plaintiff was a registered student during her employment does not justify lower remuneration either. The status as a student is not related to the employment relationship. The value of a job performance does not change due to the fact that the employee is also a student. In the opinion of the Federal Labor Court, an objectively justified differentiation can be based on different workloads, qualifications, professional experience or different requirements at the workplace. However, the employer was unable to present such justified differentiation criteria.
According to the limitation period under the collective agreement, mutual claims of all kinds arising from the employment relationship had to be asserted in writing within a period of three months, which the plaintiff failed to do. In this regard, the Federal Labor Court stated that the violation of the statutory provision of § 2, para. 1 of the Employment Promotion Act (now § 4, para. 1 of the Part-Time Employment Promotion Act) is to be considered a violation of a protective law and therefore an unlawful act within the meaning of § 823 ff. of the German Civil Code (BGB). Such tortious claims are expressly excluded from the limitation period of the retail collective agreement (also in many other collective agreements), so that the plaintiff was able to claim the wage difference retroactively for the entire period.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.