Modification of working hours: does common law apply?

Anyone who has worked the same hours for years often does not agree with a sudden change in their working hours and can invoke customary labor law. However, this is contradicted by the employer’s right of direction, according to which he can unilaterally change the place, content and time of work. In this article you will find out in which cases a change in working hours is permitted and when the labor courts oppose such a change.

Introduction: Common law in labor law

In employment law, common law comes into play when certain operational practices have been implemented or certain rights and compensations have been granted over a longer period of time.

A simple example of this is the regular Payment of Christmas bonuses or the granting of Work from home get out of here.

If an employee receives Christmas bonuses over several years, this may give rise to a claim to this effect. Even if this claim was not contractually agreed.

If an employee is allowed to work from home for years, this may give rise to a right to work from home. Even if there is no contractual agreement to this effect between employer and employee.

Common law is not written in the form of a concrete law but this has been confirmed in the past by numerous judgments of the Federal Labor Court and other labor courts. We also talk about what we call “business exercise”. ¹.

In principle, there is no customary law regarding working hours

From the definition given above, one could therefore assume that company practice can also apply to the working hours of each employee – but this is usually not the case.

Customary law reaches its limits where… The employer’s right of direction begin. This applies above all to the location, time and type of activity.

The employer must be able to design the company regulations according to his ideas and the requirements of the company. The employer also has the right to modify the working hours of all or certain employees according to his right of management.

The fact that an employee has worked the same hours for many years or has always been assigned the same shift, does not lead to a customary right to this effect.

The right of the employer to determine and modify the content, time and place of work results from article 106 of the Commercial Code:

The employer may determine the content, place and time of work at its reasonable discretion, unless such working conditions are stipulated by the employment contract, the provisions of an employment agreement, an applicable collective agreement or legal regulations.

The interests of the employee must be taken into account

It should be noted, however, that any instruction from the employer according to “reasonable discretion“must be done ².

In simple terms, this means that the employer also has the right to make decisions the interests of the employee must be taken into account appropriately.

A case-by-case assessment must always be carried out, which also takes into account the personal and family situation of the employee. At the same time, the personal situation of all other employees eligible to carry out the activity concerned must also be examined.

However, the fact that a change in the employee’s working hours would have a negative impact on his private or family life does not necessarily mean that the order becomes ineffective and does not meet the requirements of fair discretion.

Rather, the interests of both contracting parties must be balanced.

If, for example, the change in work hours prevents the employee from caring for his or her children as usual, even if other employees in the company could accept the change in work hours without comparable consequences, the order could be challenged.

In a comparable case The Hagen labor court ruled in favor of the employee in February 2021 ³.

A 54-year-old employee filed a complaint against a change in his working hours. Since 2009, he has worked as a part-time driver, 25 hours a week. It usually delivers food to nurseries, schools, canteens and individual households Monday to Friday continuously between 8 a.m. and 1 p.m.

In 2020, the employer changed working hours and required the employee to work seven hours with a break on Friday. To do this, he would have to work 20 minutes less from Monday to Thursday.

THE The Hagen labor court opposed this change in working hours and in his judgment, he mentioned, among other things, the fact that the interests of the employee were not sufficiently taken into account.

There are also limits to the employer’s right to order

In principle, it should also be noted that there are limits not only to common law, but also to the employer’s right of direction.

In principle, the employer can certainly issue specifications and changes to working hours, but such changes Contractual agreements must take priority.

If an employer’s instructions conflict with a contractual agreement, employees are generally not required to comply with them.

For example, if fixed working hours have been agreed as part of an employment contract or a collective agreement, a company agreement or an individual agreement, these cannot be changed without the consent of the employee.

Contractual agreements always prevail and cannot be changed unilaterally by relying on the right of direction ⁴.

Changes to working hours must be announced

But even if changing work schedules is done in a reasonably discretionary manner and is not legally objectionable, it generally cannot be done overnight.

It is not possible to say generally what notice period must be respected by the employer. There is one here too Individual case review required.

If it is a minor adjustment which should not have significant consequences for the employee, the notice period may very well be only a few days. We go from a Delay of at least 4 days of. A corresponding regulation of part-time and fixed-term employment law is often cited for comparison ⁵.

However, if the modification of working hours has considerable consequences which strongly influence the personal interests of the employee, we can Notice period of up to several weeks be assumed.

Conclusion: no common law, but still restrictions

Even if there is no fundamental customary law regarding an employee’s working hours, their interests must be taken into account appropriately when changing working hours.

It is always necessary to check on a case-by-case basis whether a change in working hours is permitted and what notice periods must be respected.

It is recommended to start with seek to discuss with the employer and present the effects of changing work schedules on personal interests. In many cases, a solution satisfactory to all parties can be found, including the participation of the rest of the staff.