Background

According to political orientation in Great Britain, zero-hour contracts are either lauded as a modern and flexible working model which has contributed to the current economic boom, or are condemned as a tyrannical instrument for the exploitation of workers in the low-pay sector. Irrespective of the outcome of the election, it appears that the up until now unregulated use of zero-hour contracts will be subject to new restrictions in the following legislative period. The zero-hour contract which has become a widespread form of employment contract in Great Britain basically has no fixed working hours. Instead, the employee works on call according to the requirements of his employer. If no work is called for (zero-hours), no wages are paid. Upon examination, the contractual provisions of such zero-hour contracts are very different. On the one hand, employers can unilaterally demand work by SMS or telephone without a minimum notice period, whilst on the other hand, employees are free to accept or reject assignments.

The legal position in Germany

What is the position in Germany? Are zero-hour contracts allowed here? How flexible can employment contracts actually be? Unlike the situation in Great Britain, employers in Germany do not have complete flexibility to determine the duration and location of working hours. It was already held by the German Federal Employment Court in the mid-1980s that the duration of working hours determined at the will of the employer, unreasonably prejudiced the employee. With such flexible working models, both the working hours and the pay are unforeseeable for the employee. Furthermore, if the employer is completely free to determine working hours, this will circumvent statutory protection against unfair dismissal. Zero-hour contracts are therefore not permitted in Germany. Employment contracts must contain a (minimum) duration of working hours. Working assignments and hours can be arranged flexibly in order to react to fluctuating workloads and various operational requirements. What can be used is an agreement for minimum working hours or fluctuation rules whereby the employer can call up for work within a certain framework of hours. Another helpful option is the variable arrangement of working hours which, as expressly confirmed by case-law, allows for agreed working hours to be extended by up to 25%. A core working week of 30 hours can be agreed, for example, but the employer can demand working hours of 37,5 hours a week. The duration of the weekly or monthly working hours can also be arranged on a variable basis. A consistent allocation of working hours or their location is not necessary. A compensation period must be agreed in the employment contract during which the agreed working hours have to be performed. In the case of on-call contracts of employment, the duration of both the weekly and the daily working hours must be specified. If these details are not given in the contract of employment, weekly hours of 10 hours and daily hours of 3 hours are deemed to have been agreed. However, the employer and employee can contractually agree other, even shorter working or operating times. In this way a daily working time of one hour or a different allocation of working times over different time periods can be agreed; for a five-hour working week, the hours could be performed on one day or be spread over two, three, four or five days depending on the workload.

Conclusion

There are already sufficient options in Germany for employers to react to frequent and strong fluctuations of staff requirements and to employ employees on a flexible basis according to changing operational needs. Even without zero-hour contracts, companies in Germany still have space to breathe and can use their staff on a flexible basis. Perhaps it is time for Great Britain to follow the German example.