Even though, unarguably, few employees would give up a good night’s sleep in order to work night shifts, operational necessity often dictates otherwise. Certain businesses can only remain competitive and survive in the market if they require their employees to work during night-time. Parcel services, bakeries and hospitals are just a few examples of businesses where working night shifts seems to be an absolute necessity.
Under German law, employees may be required to work during night hours (defined by law as from 11 p.m. to 6 a.m.), provided that a works council (if any) has been involved and any collective labour agreement has been considered. Exempt from night-time work are pregnant/nursing women and minors. In all other cases, employers may determine the length, time and frequency of night-work at their reasonable discretion under observance of the general maximum working hours set out in the German Working Time Act (ArbZG).
However, for night-time work performed in a rotating shift or during at least 48 days per year, the employer is obliged to provide additional compensation. If no compensation regime exists in an applicable collective labour agreement, compensation for working hours performed at night-time must either be provided in the form of
- a reasonable amount of paid work-free days or
- a reasonable increment in the employee’s gross salary for the night-time working hours performed (sec. 6 para. 5 ArbZG).
Being an indeterminate legal term, the question of what is “reasonable” (“angemessen”) in this sense is often the subject of dispute. Unless agreed upon in the employment agreement or provided for in a collective labour agreement, in a dispute, what amounts to a “reasonable” surcharge would have to be determined by a labour court. A recent judgment by the German Federal Labour Court (BAG) has now shed some light on the question of reasonableness in this context (BAG 09.12.2015 – 10 AZR 423/14).
In this case, the claimant was employed as a truck driver for a parcel delivery service. Including breaks, his shifts usually ran from 8 p.m. to 6 a.m. For work from 9 p.m. to 6 a.m., his employer (not bound by a collective bargaining agreement) paid the claimant an increment on his gross salary of 11 per cent, which was gradually increased to 20 per cent. The BAG saw this as not “reasonable” within the scope of the night-work compensation regime (see above). The court concluded, that for night-time work, a surcharge of 25 per cent or an equivalent amount of paid work-free days is deemed “reasonable” in this sense. This amount may be reduced in cases of reduced workload, e.g. standby duty (Arbeitsbereitschaft) or on-call duty (Bereitschaftsdienst). An increased workload on the other hand, may lead to a higher increment/equivalent amount of paid work-free days of up to 30 per cent. The court assumed the latter in cases of long-term night work, which the claimant had been required to perform.