Are night shift workers and occasional night workers comparable? "Yes, they are!", ruled the German Federal Labor Court (BAG) in its judgment of December 9, 2020, file no.10 AZR 334/20. Different pay rates for night work are repeatedly the subject of labor law proceedings. The BAG has now ruled that collective bargaining agreements which provide for a night work bonus for night shift workers that is only half as high as the bonus for occasional night work violate the principle of equality pursuant to Art. 3 Sec. 1 GG (German Basic Law).
In the above-referenced proceedings, the parties were in dispute about the amount of collectively agreed nighttime bonuses for hours worked in night shifts.
The plaintiff works shifts at the defendant's brewery. The collective agreement provides for employees in the breweries to receive a bonus of 25% gross in addition to their hourly pay for night shift work rendered from 10 p.m. to 6 a.m. Night workers outside a shift system (occasional night work) receive a bonus of 50% gross on top of their hourly pay for the same period.
In his lawsuit, the plaintiff requested a ruling that the defendant must also pay a 50% bonus for night shift workers. He is of the opinion that the differentiated remuneration violates the principle of equality pursuant to Art. 3 GG, since there was no objective reason to treat persons who perform night work within the scope of shift work and persons who perform night work outside of shift work differently. Night work was equally burdensome for all employees, so there was no reason for unequal treatment due to the lack of a habituation effect. In particular, halving the bonus for night shift work contradicts the established findings of occupational medicine. According to these findings, the health risks from regular night work are higher than those from only occasional night work.
The defendant considers the collective agreement’s provision to be effective, since the higher bonus compensates for the special burden on employees who are requested to work at night without preparation. Irrespective of the health risks, night work in shift work can regularly be planned by the employees, whereas night work outside a shift plan and thus as an exceptional case was particularly stressful.
The lower courts dismissed the action. The BAG now allowed the plaintiff's appeal.
The BAG clarified that night workers and night shift workers are comparable. The collective bargaining agreement justifies the unequal treatment merely by stating that the employees’ private and cultural wishes must largely be taken into account when night work is performed outside of shift systems. In this context, the higher bonus for night workers cannot have or serve the purpose of protecting their free time from the employer’s interference. Further sufficient factual reasons which could justify a different treatment of night shift workers were not evident from the collective agreement. Therefore, the BAG granted the plaintiff the right to demand the higher bonus in order to be treated equally with the non-occasional night workers (so-called upward adjustment).
The decision illustrates once again how strongly fundamental rights can influence an employment relationship. If employers have provided for inconsistent remuneration for night work in their employment contracts, they are required to check whether there are sufficient objective reasons in the respective contract to justify the unequal treatment. In future, one can expect for the BAG’s argumentation to impact many further proceedings. This can already be seen in the BAG’s decision in the parallel proceedings to this decision (BAG, judgment of December 9, 2020 - file no. 10 AZR 335/20). Even outside of collective bargaining agreements, the employer is obligated to pay an appropriate allowance for night work under an employment contract pursuant to Art. 6 Sec. 5 ArbZG (German Working Hours Act). If a comparable group of employees is treated differently with regard to the allowance, the aforementioned principles can also be applied outside of collective bargaining law.