Supplements in case of illness
June 26, 2014 | 30,00 EUR | answered by Stefan Steininger
Our employees receive a supplement for Sunday and night work; these are social security and tax-free. According to a ruling by the Federal Labour Court (BAG), this supplement should also be paid in case of illness. Does this apply in general? Is there a legal possibility within the framework of a contract amendment to exclude the payment of supplements in case of illness? It cannot be that someone who does not have the special difficulties of Sunday work also receives more than if he had worked, and the employer has to pay these supplements twice, namely to the sick person and to the person who performs the substitute service for the sick person.
Dear questioner,
In decision 5 AZR 89/08 of January 14, 2009, the Federal Labor Court (BAG) clearly stated that supplements also fall under the continued payment of wages. Even the objections of the employer in that case were not considered sufficient. The BAG explicitly states: "The work of the plaintiff on Sundays and public holidays was canceled solely due to her respective illness-related inability to work, as the plaintiff was scheduled to work on the relevant Sundays and public holidays. Therefore, the plaintiff is entitled to continued payment of wages in case of illness according to the principle of wage loss. The principle of wage loss generally entitles the employee to full compensation, including any supplements. (...) In any case, the right to Sunday and public holiday supplements does not expire with the credit of working time equal to the basic working time or the grant of a substitute rest day." (BAG, ibid)
The only question here is the contractual entitlement, in which case the BAG stated that there was no agreement to reduce the supplements (in the case being decided). Whether and to what extent such an agreement could be validly concluded in your case, and the current contractual situation, cannot be conclusively assessed here. This would probably be the only approach, although the employee cannot be obliged to agree to such a change.
Furthermore, the supplement is not a bonus that could be waived.
In the normal course of business, the supplements will probably have to be paid.
