The case
The plaintiff works for the defendant as a paramedic as part of a marginal part-time job. The defendant carries out, among other things, emergency rescue and patient transport on behalf of a rescue association. It employs – according to its own terminology – so-called “full-time” paramedics full-time and part-time, to whom it paid an hourly rate of 17.00 euros gross during the dispute period. In addition, so-called “part-time” paramedics work for you, who receive an hourly wage of EUR 12.00 gross. The plaintiff is one of the latter. The defendant does not unilaterally assign the part-time paramedics to duties. Rather, they can name desired dates for assignments, which the defendant tries to meet. However, there is no entitlement to this. In addition, the defendant informs the part-time paramedics about free shifts that still need to be filled and, with short-term inquiries, asks them to take over a service if full-time paramedics are unavailable. The plaintiff’s employment contract stipulates an average working time of 16 hours per month. In addition, it is determined that he can work additional hours and is obliged to actively attend to shifts.
With his lawsuit, the plaintiff demanded additional remuneration of EUR 3,285.88 gross for the period from January 2020 to April 2021. He asserted that the different hourly wages compared to the full-time employees represented a disadvantage because of his part-time work. The defendant considers the wage difference to be objectively justified because with the full-time paramedics she has greater planning security and less planning effort. They also received a higher hourly rate because they had to report to certain services when instructed.
The Labor Court dismissed the action. On appeal by the plaintiff, the Munich Regional Labor Court amended the judgment of the labor court and ordered the defendant to pay the required remuneration (01/18/2023 – Az. 5 AZR 108/22).
The decision
The Federal Labor Court has now confirmed the decision of the Regional Labor Court. The hourly wage, which is lower than that of full-time paramedics, disadvantages the plaintiff without objective reason and thus violates the ban on discrimination in Section 4 Paragraph 1 of the Part-Time and Fixed-Term Act. Accordingly, part-time employees may not be treated worse than comparable full-time employees because of their part-time work. Unless there are objective reasons for doing so. The full-time and part-time paramedics are equally qualified and perform the same tasks. The assertion of the increased planning effort in the deployment planning of the part-time employees does not constitute a factual reason to justify the unequal payment. It is not apparent that this effort, taking into account the necessary “24/7 duty planning” and the public law requirements for staffing the rescue and ambulance is significantly higher. Even if one assumes that there is more planning security with full-time paramedics, the defendant is still not free in this respect, but is required to comply with the duration of the working hours and the respective breaks.
practice note
If you employ employees as part of a marginal employment relationship or on a part-time basis, you should make sure that marginal employees who are not subject to any instructions from the employer with regard to the extent and location of their working hours, compared to full-time employees who are assigned to work, do not have any may receive lower hourly wages if they have the same qualifications and do the same job. The principle applies that part-time work differs from full-time work only in quantitative and not in qualitative terms.
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2023-05-30 06:54:39
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