The proceedings concerned the assertion of a salary claim for default of acceptance by an employee. She had contractually agreed with her employer to work on call. The employment contract did not contain any provision on her weekly working hours. During the period of employment, the employee was deployed by her employer to varying degrees as required. Starting in 2020, the amount of hours called by the employer decreased compared to the 3 previous years (2017 to 2019), which is why the employee’s monthly salary also decreased. The employee therefore sued her employer for (subsequent) payment of salary calculated on the basis of 103.2 hours per month (monthly average in 2017 to 2019). The employee argued that, through supplementary interpretation of the employment contract, it would result that the monthly average working time of the past 3 years would now be the working time owed and the minimum working hours the employer should have to compensate. Since the employer did not schedule the employee to the full extent she believed was due to her, she claimed the right to payment of default of acceptance wages.

The previous instances had already ruled that in the absence of an agreement on the duration of the weekly working time in an on-call employment contract, the statutory provision of § 12 (1) sent. 3 of the German Part-Time Working and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz, TzBfG) closed the resulting regulatory gap and a working time of 20 hours per week was deemed to be agreed. The Federal Labor Court ultimately agreed with this legal opinion.

A deviation from the statutory provision in § 12 (1) sent. 3 of the German Part-Time Working and Fixed-Term Employment Act with regard to the duration of the weekly working time can only be considered in exceptional cases by way of a supplementary interpretation of the employment contract if a weekly working time of 20 hours does not represent an appropriate provision in the individual case. Additionally, there must be  objective indications that the contracting parties would have agreed on a higher or lower weekly working time when concluding the on-call employment contract had they known that specification of working hours was necessary. However, there were no indications of this in the case.

Irrespective of this, the contracting parties could also expressly or impliedly agree on a different weekly working time during the term of the employment relationship. However, the on-call behavior of the employer alone is not sufficient, because it cannot be interpreted as a legal declaration that the employer intends to commit to a higher weekly working time in the future. The employee’s willingness to work more than 20 hours per week could also not lead to the assumption that the employee wanted to work more than 20 hours per week on a permanent basis.

For reasons of legal certainty and in order to avoid costly litigation, employers may therefore want to ensure that a specific weekly working time and the scope of the on-call working hours are explicitly agreed in on-call employment contracts.



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