BAG v. 15.10.2021 – 6 AZR 253/19

No discrimination against part-time employees & the TVöD-K Regulation 

The case concerns a german nurse/caregiver suing against the clinic she has been working for severals years. as a part-time nurse with a weekly working time of 32 hours. She works alternating shifts and shifts according to a duty roster for the month. Due to the fact that both parties are bound by collective agreements, the provisions of an in-house collective agreement of 19 January 2017 apply, which in turn refers to the TVöD-K in the version applicable at that time for the remuneration of overtime and extra work.

In the period from January to June 2017, the plaintiff worked both hours scheduled in the duty roster (planned) and hours not scheduled in the duty roster (unplanned) beyond her contractually agreed working hours, without, however, exceeding the regular weekly working hours of full-time employees. The defendant remunerated these working hours with the pro-rata pay scale according to the collective agreement.

In addition, the plaintiff claimed overtime pay on the basis of § 7 para. 8 lit. c, § 8 para. 1 sentences 1, 2 letter a TVöD-K in the amount of approximately € 215. She argues that she is entitled to this amount for the unplanned working hours even if she does not exceed her agreed regular working hours. As far as the planned working hours are concerned, exceeding the regular weekly working hours of full-time employees is not relevant. Otherwise she would be discriminated against as a part-time employee under national law and under European Union law compared to full-time employees.

The Labour Court partially upheld the complaint and ordered the defendant to pay the plaintiff approximately €55, dismissing the rest of the complaint. The Regional Labour Court (LAG) changed the judgement and only upheld the claim in the amount of approximately 46 €. The plaintiff’s appeal before the BAG was unsuccessful.

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