Unequal treatment of employees during working hours: what is allowed?

It is unfair for the employer to give preference to certain employees when it comes to working hours, but it is not uncommon. However, it must always be examined on a case-by-case basis whether this results in a violation of the Equal Treatment Act or the principle of equal treatment in employment law. In this article you will find out when such a violation occurs and how much flexibility employers have when it comes to working hours.

Employers are allowed to treat their employees individually preferentially

Unequal treatment of employees not only causes resentment among staff, but can also, in many cases, constitute a violation of general laws and labor law on equal treatment.

This principle obliges employers, employees with comparable job profiles be treated equally. Individual employees must not be disadvantaged compared to their colleagues for arbitrary reasons ¹.

However, a fundamental distinction must be made between one a better situation and a worse situation. Although it is not permissible to discriminate against a particular employee, it may be permissible to give preferential treatment to a particular employee.

What seems paradoxical at first glance is, however, completely understandable in practice. We will talk about this later in the article.

Furthermore, unequal treatment is in principle permitted if it occurs for factual and objective reasons. For example, if only employees who have been with the company for more than a year are allowed to temporarily work from home, this approach cannot be challenged. ².

Unequal treatment of employees during working time

Unequal treatment with regard to the working hours of different employees can occur in different ways. For example, giving each employee permission to leave their workplace earlier than others.

In any case, what may be unfair does not necessarily constitute a violation of the general principle of equal treatment of labor law.

Basically, we must understand that the Contractual freedom in labor law largely takes precedence over the principle of equal treatment. For example, employers may agree to higher or lower salaries with individual employees than with their colleagues in comparable positions. ³.

The same goes for working hours: it is perfectly permissible to pay the same salary to two employees, while one employee must work 40 hours per week and the other must work only 32 hours per week.

What applies if the employment contract has the same rules?

But even if both employees must work 40 hours per week in accordance with their employment contract, the employer can grant each employee greater freedom in organizing and planning their working time.

For example, authorization arrive at work later, take longer breaks, or leave work earlierthan what colleagues are allowed to do.

The principle of equal treatment does not mean that employers are prohibited from entering into individual arrangements with employees which do not apply to others.

However, an exception could arise if, for example, the employer only requires male employees to leave their workplace at 12 p.m. on Friday, while employees must work until 4 p.m. that day ⁴.

When unequal treatment in working hours is unacceptable

As we have already explained, any form of unequal treatment in terms of working hours does not constitute a violation of the principle of equal treatment. However, it can certainly be such a violation.

For example, if part-time workers must start working earlier than their full-time colleagues, without being obliged to do so objective reason given ⁵.

But what is crucial here is that the employment profiles of full-time employees and those of part-time employees are comparable.

For example, if part-time employees have to arrive at the company earlier because they prepare work processes for their full-time colleagues, a different start to the working day is certainly permitted – there is an objective reason.