Double discrimination against part-time workers

EU law prohibits employers from treating part-time employees less favourably than comparable full-time employees, unless such treatment is justified by objective reasons. EU law also 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 full-time working hours of 38.5 hours per week. 

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 this provision. 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 discrimination against part-time employees and gender discrimination. 

As regards the interpretation of the prohibition of discrimination against part-time employees, the ECJ stated 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 these employees ‘can be regarded as being in a comparable situation’ to full-time employees. 

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 stated that the assessment of whether such objective grounds exist must take into account the specific nature and inherent characteristics of the tasks that the employees perform as well as ‘the pursuit of a legitimate social policy objective’. 

With respect to the specific case, the ECJ stated (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 could not 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 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 unlawful indirect discrimination is established if (1) in practice, the provision on overtime pay places women in a less favourable position than men and (2) this difference in treatment is not 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 who are adversely affected. In this context, the ECJ mentioned that, according to the information provided in the case, 77% of the dialysis provider’s total employees were women. Of all those employees, more than half worked part-time, of whom 85% were female. In the group of full-time employees, 68% were female. Consequently, the ECJ noted the fact that there was a majority of women both in the group of part-time employees and in the group which was ‘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 indirect gender 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.

The ECJ’s ruling demonstrates 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; and 
• 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 this difference is not objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. 

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. Therefore, the social partners and labour authorities in the EU member states will need to analyse the ruling carefully to assess whether there is a need for legislative initiatives in this area.