Federal Labor Court specifies case law on the amount of night work supplements

Due to the health impairments caused by night work, a ruling by the Federal Constitutional Court in 1992 obliged the legislature to provide health protection measures for night work. For this reason, among other things, the legal regulation of Section 6 Paragraph 5 of the Working Hours Act was created, according to which employees have a legal right to an appropriate night work supplement or to an appropriate number of paid days off if they do night work. Indirectly, this increase in the cost of night work is intended to deter the employer from ordering night work. But what amount is “appropriate” for a night work supplement?

The legal situation is clear if a collective agreement applies to the employment relationship in question and this contains a regulation for night work surcharges. Then the amount specified in the tariff applies. It is harmless that the collective bargaining regulations vary greatly depending on the industry. In a survey, the Economic and Social Sciences Institute (WSI) of the Hans Böckler Foundation determined night work surcharges ranging from 10 % to 100 %.
To date, however, there has been great uncertainty as to which night work supplement is “appropriate” if no collective bargaining regulations apply to the employment relationship. Due to their wide range, collective night work surcharges could only be used as a guide. The determination of an “appropriate” night work supplement therefore always had to be made on a case-by-case basis.
Now, with a recent ruling dated December 9, 2015 (ref.: 10 AZR 423/14), the Federal Labor Court has for the first time adopted a standard value for an “appropriate” night work allowance. The Federal Labor Court now takes the view that, in principle, a surcharge of 25 % on the gross hourly wage is appropriate.
According to the Federal Labor Court, a reduction in the amount of the night work allowance is exceptionally possible if there is a significantly lower workload during the night, for example because only work or on-call service is carried out during the night.
However, according to the Federal Labor Court, an increase in the night work allowance must be made for permanent night work. According to reliable scientific findings, this leads to increased stress on the employee. For this reason, a night work supplement of 30 % is usually appropriate for permanent night work.
In practice, employers often express the objection, especially when working at night on a permanent basis, that the agreed salary (without explicitly stated night work supplements) was agreed solely for night work and therefore implicitly also includes the night work supplement. The Federal Labor Court has been very reluctant to recognize such arguments in the past. In principle, this can only be assumed if the amount of pay explicitly refers to the night work to be performed and the relationship between the basic wage and the night work supplement is clarified. In the current judgment of December 9, 2015, the Federal Labor Court also did not recognize the employer's argument.
At his discretion, the employer can also grant an appropriate number of paid days off instead of a monetary bonus. The standard values of 25 or 30 % set by the Federal Labor Court also apply with regard to compensatory time off (which is rather rare in practice).
Night work is any work that lasts more than 2 hours at night (Section 2 Paragraph 4 of the Working Hours Act). Nighttime is the time from 11:00 p.m. to 6:00 a.m., in bakeries and pastry shops the time is from 10:00 p.m. to 5:00 a.m. (Section 2 Paragraph 3 of the Working Hours Act).
To the press release from the Federal Labor Court >>