Employer may prevent Increase to Full-Time Employment

In a recent ruling, the Federal Labour Court has proposed ways for employers of preventing part-time employees from increasing their working hours. However, despite the apparent success for employers, the ruling should be treated with caution.

Facts of the Case

The employer based its request on Section 9 of the law on part-time and temporary employment. According to this provision, an employee working part-time has to be given priority when the employer intends to fill a vacancy with a higher volume of working hours. In a first step, employees only have to communicate their respective interest in an increase in working hours. Despite the fact that the employee bringing the action had communicated her respective request in good time, her employer ignored her when several full-time vacancies were filled and instead hired external applicants. The employee then brought an action and requested full-time employment from her employer. The Federal Labour Court has dismissed the action.

Ruling of the Federal Labour Court

The court refers to the fact that an increase in working hours always requires that there is a vacancy. However, it would be the sole decision of the employer whether the employer would create new jobs or fill posts that were temporarily vacant. Consequently, the employee bringing the action could not request full-time employment. The vacancies were no longer available. The employer did not want to create additional jobs. Therefore, at the time of the ruling, it would have been impossible for the employer to still meet the employee’s request. 

Furthermore, the employee bringing the action could not request an increase in working hours from the point of view of damages either. In fact, the employer would have to treat the employee as if he had not caused her any damage according to tort law. However, the Federal Labour Court then drew a parallel with the General Equal Treatment Act. According to the respective provisions, an employee who has been disadvantaged may not request to be hired or promoted in the case of a discrimination. Instead, the employee is referred to payment claims. The Federal Labour Court also applies this legal concept to a request for an increase in working hours.

With that, the Federal Labour court renders it relatively easy for employers to counter a request for an increase in working hours. Even if the employer has to fill vacancies, the employer may avoid the increase in working hours by hiring other applicants.

However, with that, the employers will in most cases not do themselves any favours. In its ruling, the Federal Labour Court implies several times that the employee affected may claim a monetary payment as compensation. Since the employee bringing the action has not (yet) claimed such a monetary payment, ultimately, the court did not have to provide a ruling in this regard. However, it follows from previous court decisions that the employer will have to pay the difference in salary between the part-time employment and the full-time employment as compensation. With that, the employer has to remunerate the additional work performance without actually receiving such additional performance. This will hardly ever pay off.

Consequently, the ruling of the Federal Labour Court seems very favourable for employers at first glance. However, on closer inspection, it will not pay off to circumvent a justified request for an increase in working hours. Rather, employers should carefully check whether the request of the employee actually meets all the statutory requirements or can be dismissed as unfounded.

Federal Labour Court, ruling of 18 July 2017, 9 AZR 259/16

Dr Jan T. Hartmann, Lawyer, Accredited Specialist in Employment

January 2018