BusinessEmployment / labour

Flexible working hours

Employ­ers par­ti­cu­lar­ly app­re­cia­te it when they can deploy their employees fle­xi­bly. This is also reco­g­nis­ed by the legis­la­tor. Accor­ding to Sec­tion 12 of the Part-Time and Fixed-Term Employ­ment Act (Teil­zeit und Befris­tungs­ge­setz), it is pos­si­ble to agree work on call with an employee, mea­ning that the work can be per­for­med accor­ding to the workload as ins­truc­ted by the employ­er. Howe­ver, extre­me cau­ti­on is requi­red when agre­e­ing such on-call work:

The agree­ment must con­tain a spe­ci­fic dura­ti­on of weekly and daily working hours. If the dura­ti­on of the weekly working time is not spe­ci­fied, a working time of 20 hours is dee­med to have been agreed. If the dura­ti­on of the daily working time is not spe­ci­fied, the employ­er must uti­li­se the work per­for­mance for at least 3 con­se­cu­ti­ve hours. If, in addi­ti­on, a mini­mum or maxi­mum working time is agreed for the dura­ti­on of the weekly working time, the employ­er may only call up to 25% of the weekly working time in addi­ti­on or only up to 20% of the weekly working time less. It is the­r­e­fo­re cus­to­ma­ry and advi­sa­ble to agree on so-called time cor­ri­dors for on-call work, within which the call-off takes place.

Accor­din­gly, the Fede­ral Labour Court ruled on 18 Octo­ber 2023 — 5 AZR 22/23 that an employ­er must pay 20 hours per week, even though the employee had work­ed fewer hours in accordance with the sta­tu­to­ry regu­la­ti­on. A devia­ting inter­pre­ta­ti­on of the agreed working hours could only be con­side­red in abso­lut­e­ly excep­tio­nal cases — the employ­er would the­r­e­fo­re have to explain and prove why the working hours should excep­tio­nal­ly be less.

The use of this fle­xi­bi­li­sa­ti­on instru­ment can the­r­e­fo­re lead to unp­lea­sant con­se­quen­ti­al costs if these sta­tu­to­ry pro­vi­si­ons are dis­re­gard­ed in the cor­re­spon­ding agree­ment.

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