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Amount of a company pension – Effect of part-time employment

Federal Labour Court, Erfurt, Germany

Press Release No. 5/21

March 23, 2021

A pension regulation may effectively provide that periods of part-time employment are only taken into account on a pro rata basis when determining the periods of service to be taken into account in the calculation of the old-age pension. Similarly, a pension scheme may provide that a maximum limit of a retirement pension for part-time workers is reduced in accordance with the degree of part-time employment during the employment relationship. These provisions do not constitute inadmissible discrimination on the grounds of part-time work within the meaning of section 4 (1) TzBfG.

The plaintiff was employed by the defendant for almost 40 years, predominantly on a part-time basis. Since 1 May 2017, she has been receiving a company old-age pension on the basis of the group company agreement in force in the defendant’s company („benefit regulations“). The amount of the pension depends on the pensionable income reached at the end of the employment relationship and the years of credited service completed. If the relevant income is remuneration for part-time work, the income that the employee would have earned in full-time employment is taken as a basis. The benefit regulations also contain a provision according to which periods of service in part-time work are only credited on a pro rata basis. The creditable period of service is limited to a maximum of 35 years. If this period is exceeded, the years with the most favourable ratio for the employee are taken into account. According to the benefit regulations, an absolute maximum limit of 1,375.00 euros per month applies to the old-age pension if the income exceeds the relevant contribution assessment limit in the statutory pension insurance when the insured event occurs. In the case of the plaintiff, the benefit regulations provide for a part-time factor of 0.9053, although she had worked a total of 34.4 full-time working years in her employment relationship of almost 40 years. The plaintiff challenged the consideration of the part-time factor in her action for payment of the difference to the maximum possible old-age pension. The Labour Court dismissed the action. The Regional Labour Court upheld it in part.

The defendant’s appeal – in contrast to the plaintiff’s cross-appeal – was successful before the Third Senate of the Federal Labour Court. The decision of the Labour Court dismissing the action in its entirety was restored. The calculation of the old-age pension provided for in the benefit order taking into account a part-time degree is effective. The plaintiff was not dismissed within the meaning of sec. The plaintiff was not disadvantaged within the meaning of § 4.1 TzBfG because of her part-time work, because her work performance of almost 40 years was not converted into 34.4 years of full-time work. She is not comparable to an employee who worked 34.4 years full-time and then retired. Nor can she successfully claim that she is disadvantaged because of her part-time work, because the part-time factor calculated according to the benefit regulations is also applied to the pension ceiling. Rather, she receives an old-age pension to the extent that corresponds to her work performance in relation to the work performance of an employee who has worked full-time in the defendant’s company for the same length of time. This is permissible.

Federal Labour Court, Judgement of 23 March 2021 – 3 AZR 24/20 –

Previous instance: Hamburg Regional Labour Court, judgement of 19 August 2019 – 8 Sa 56/18 –

Quelle: Pressemitteilung des Bundesarbeitsgerichtes 5/21