AGG and Fixed-Term/Part-Time Work: Section 4 TzBfG Interplay

Main article: Section 22 AGG — Reversal of Burden of Proof — why prima facie evidence is sufficient and the employer must then bear the full burden of proof.

1. The non-discrimination rule in § 4 TzBfG

§ 4 TzBfG prohibits treating part-time or fixed-term employees less favourably than full-time or permanent employees where the work is comparable.

This must be distinguished from the admissibility of the fixed term as such: that is governed by § 14 TzBfG — with an objective reason under subsection (1); without an objective reason, a calendar-based fixed term is permissible under subsection (2) for a total duration of up to two years, with no more than three extensions within that overall duration (special rules for newly founded enterprises and older employees in § 14(2a) and (3) TzBfG). The prohibition of less favourable treatment in § 4 TzBfG, by contrast, concerns the treatment of employees doing comparable work. In Austria, neither § 4 nor § 14 TzBfG applies (see the Austria section).

For the interplay with the AGG, one point sets the course: part-time work and fixed terms are not themselves protected characteristics. § 1 AGG lists exhaustively the grounds on which less favourable treatment is prohibited — race or ethnic origin, sex, religion or belief, disability, age and sexual identity. Protection under the AGG therefore only starts once the unequal treatment is linked to one of these characteristics (on this, section 2). Where it does apply: under § 7(1) AGG, employees must not be placed at a disadvantage on any ground referred to in § 1 — not even where the person acting merely assumes that the ground exists; provisions in agreements that breach this are void under § 7(2) AGG.

2. Interplay with the AGG

Part-time work and sex frequently correlate — a disadvantage based on part-time work can therefore at the same time amount to indirect discrimination against women on grounds of sex.

The legal point of reference for this is § 3(2) AGG: indirect discrimination exists where apparently neutral provisions are liable to put persons at a particular disadvantage on a ground referred to in § 1. Art. 2(1) of Directive 2006/54/EC frames the same concept for sex and at the same time states the counter-test: the rule remains admissible if it is objectively justified. In practice this means: a rule that formally refers only to the volume of working time can satisfy the elements of indirect discrimination as soon as it affects a group that predominantly belongs to one sex — and the employer cannot explain the distinction on objective grounds. The assessment therefore proceeds in two steps: first the question of who the rule actually affects, then the question of the objective reason.

The proximity of fixed terms to pregnancy and illness is an observation from practice, not a rule of law — what matters in each individual case remains the link to a characteristic listed in § 1 AGG.

3. The pro rata principle

Pay, bonuses and leave are granted on a pro rata basis in part-time work: pay and other divisible monetary benefits are due to part-time employees at least to the extent that corresponds to the proportion of their working time (§ 4(1) sentence 2 TzBfG). Access to training, by contrast, is not measured pro rata: the employer must ensure that part-time employees can also take part in training and further training measures, unless urgent operational reasons or the training wishes of other employees stand in the way (§ 10 TzBfG).

For the equal treatment assessment it is important that the benchmark does not stop at basic salary. Art. 4 of Directive 2006/54/EC covers all pay components and conditions. In Germany, § 3 EntgTranspG prohibits both direct and indirect pay discrimination on grounds of sex in respect of all pay components, and § 7 EntgTranspG requires equal pay for equal or equivalent work. In Austria, § 3 no. 2 GlBG (setting of pay) and § 11 GlBG (pay criteria) perform this function — details in the Austria section. Bonuses, allowances and special payments are therefore part of the assessment programme in both jurisdictions.

What is decisive is not the type of benefit but the justification — on indirect discrimination through working-time-related rules, see section 2. Practical recommendation for the assignment within the company: ask, for each benefit, whether it is measured by working time or by work output — in which case granting it pro rata is the obvious approach — or whether it is granted without reference to the volume of working time. Record the result and the objective reason following the pattern in section 7; that justification is precisely the material you must produce in a dispute under § 22 AGG (section 8).

4. Fixed terms: when does unequal treatment become an AGG case?

Unequal treatment of fixed-term employees only becomes an AGG case once it is linked to a characteristic listed in § 1 AGG (section 1). Because of the fixed term as such, fixed-term employees must in any event not be treated less favourably than comparable permanent employees (§ 4 TzBfG, section 1).

Where protection under the AGG applies, the same assessment programme applies to fixed-term employees as to permanent employees (§ 7 AGG, section 1) — the invalidity consequence of § 7(2) AGG also covers clauses in fixed-term employment contracts. For Austria, § 3 GlBG (sex) and § 17 GlBG (other grounds) expressly state which decisions are covered — in particular the establishment of the employment relationship, the setting of pay, professional advancement, other working conditions and the termination of the employment relationship. For fixed-term employment relationships, the AVRAG is the relevant act there (see the Austria section).

Two constellations require particular scrutiny in fixed-term contracts. First, the response to a complaint: the employer must not place employees at a disadvantage because they have exercised their rights or because they have refused to carry out an instruction that discriminates; this also applies to persons who provide support or give evidence as witnesses (§ 16(1) AGG; Austria: § 13 and § 27 GlBG respectively). Second, the job advertisement: the same requirements apply to fixed-term positions as to any other (§ 11 AGG, section 10). In practice, enforceability turns on the time limit — the time limits for asserting claims in Germany and Austria are set out in section 9.

5. Special payments and variable pay in part-time work

Special payments, as divisible monetary benefits, must be granted to part-time employees at least pro rata (§ 4(1) sentence 2 TzBfG). The CJEU applied the pro rata temporis principle of the Framework Agreement on part-time work to annual leave in its judgment of 22 April 2010 — C-486/08 (Zentralbetriebsrat der Landeskrankenhäuser Tirols): it applies to the period of part-time employment, but paid annual leave accrued during full-time employment and not yet taken must not be reduced on the switch to part-time work.

Once the national transposing act applies (transposition proviso, section 6), pay transparency law treats variable pay as a separate reporting item: the pay report sets out the pay gap on the basis of variable pay components (bonuses, commissions) separately (Art. 9(1) of Directive (EU) 2023/970; the full list of indicators is in section 6). Anyone who calculates special payments for part-time staff using a different logic than for full-time staff thereby influences the gender pay gap that has to be reported — and must be able to explain any resulting gap on the basis of objective, gender-neutral criteria; otherwise, for employers subject to the reporting obligation, the joint pay assessment under Art. 10(1) may become due from a gap of 5 per cent (section 6). The requirements placed on those criteria are set out in section 7.

6. Pay gap risks: indicators, the 5 per cent threshold and reporting deadlines

From a gender pay gap of 5 per cent in a comparison group onwards, the joint pay assessment may become due under Directive (EU) 2023/970; employers with 100 or more employees are subject to the reporting obligation — for the first time on 7 June 2027 (from 250 and from 150 employees) and on 7 June 2031 (from 100 employees) respectively; for private employers the obligation only arises with the national transposing act. Practical recommendation for the analysis: evaluate part-time and full-time employees separately — otherwise the differing volume of working time distorts the indicators that the pay report has to set out.

Which indicators have to be produced is laid down in Art. 9(1) of Directive (EU) 2023/970: the average pay gap ((a)), the gap in variable pay and the median gap ((c)) — the median comes in addition to the average, not in its place. In addition there are the proportion of female and male employees in each pay quartile and the gap in each group of employees performing the same or equivalent work. It is in precisely those groups that it is decided whether part-time work is correctly reflected.

Where the gender pay gap — the difference in the average level of pay of female and male employees — reaches at least 5 per cent in a group, the joint pay assessment may become due. Only employers subject to the reporting obligations under Art. 9 are affected, and then only where all three conditions of Art. 10(1) are met: the difference follows from the pay reporting ((a); the threshold is already reached at exactly 5 per cent), it is not justified on the basis of objective, gender-neutral criteria ((b)) and it has not been remedied within six months of the pay reporting ((c)). The assessment is a joint assessment with the employee representatives: it analyses the causes of the gap, results in an action plan with implementation tracking, and the outcome is made known within the organisation.

Data protection limit in small part-time groups: the smaller a comparison group, the more easily the pay of individual employees can be derived from an average broken down by sex. The limit does not follow from Art. 9 GDPR — pay data broken down by sex is not a special category of data — but from data minimisation (Art. 5(1)(c) GDPR) and from Art. 12(3) of Directive (EU) 2023/970: under that provision, Member States may decide that only the workers' representatives, the labour inspectorate or the equality body have access to such information where its disclosure would otherwise reveal the pay of an identifiable worker. Practical recommendation: combine very small comparison groups in the report or do not show them separately, and set and justify the minimum group size chosen internally.

The following thresholds and dates are set out in Directive (EU) 2023/970; the transposition proviso for private employers applies to every row of the table.

Position on deadlines in Germany: the transposition deadline in Art. 34(1) of Directive (EU) 2023/970 expired on 7 June 2026. As at 17 August 2026, neither a ministerial draft nor a government bill had been published; according to the Federal Government's reply of 8 July 2026 (BT-Drs. 21/7026), the lead Federal Ministry of Education, Family Affairs, Senior Citizens, Women and Youth (Bundesministerium für Bildung, Familie, Senioren, Frauen und Jugend) is still clarifying individual questions, after which the legislative procedure is to be initiated. Under Art. 288(3) TFEU, a directive is binding only on the Member States and has no direct effect between private employers and employees (CJEU, judgment of 14 July 1994 — C-91/92 Faccini Dori); once the deadline has expired it can at most have direct effect vis-à-vis the state and state bodies. Until the transposing act, the EntgTranspG and the AGG therefore continue to apply to private employers — interpretation of the applicable law in conformity with the directive remains possible.

7. Practical recommendation

Set out the pay structure clearly, document the pro rata system and repeat the pay equity check for part-time and fixed-term employees annually.

The annual check is a practice-based rhythm, not a statutory deadline; the statutory reporting intervals are set out in section 6. What is prescribed by law — subject to the transposition proviso (section 6) — is the quality of the criteria: under Art. 6(1) of Directive (EU) 2023/970, the criteria for determining pay, pay levels and pay progression must be objective and gender-neutral and must be made available to employees proactively — without any need for a request for information. Art. 4(4) of Directive (EU) 2023/970 names the dimensions by which the value of work is measured: skills, effort, responsibility and working conditions.

The following four steps give substance to this recommendation:

• Define the comparison groups first — define clusters of the same or equivalent work before any calculation is done; otherwise the analysis mixes part-time and full-time profiles.
• Document the pro rata or flat-rate rule for each benefit — together with the objective reason that supports the distinction; in a dispute, the full burden of proof lies with the employer (section 8).
• Prepare the route for information requests — Art. 7(4) of Directive (EU) 2023/970 provides for a reply within two months; as long as national transposition is outstanding, an internal process timed accordingly is a preparatory measure, not a statutory deadline.
• Include the organisational duties — the Complaints Office (Section 13 AGG) and the duty of protection under § 12 AGG (which can be fulfilled through suitable training) apply equally to part-time and fixed-term employees (section 10).

8. Burden of proof in a dispute: § 22 AGG and the BAG line of case law

In Germany, prima facie evidence is sufficient — the employer must then produce evidence to the contrary. § 22 AGG provides: where, in a dispute, one party proves facts from which it may be presumed that there has been less favourable treatment on a ground referred to in § 1, the other party bears the burden of proving that there has been no breach of the provisions protecting against less favourable treatment. Under Union law, this is underpinned by Art. 19 of Directive 2006/54/EC for sex and by Art. 10 of Directive 2000/78/EC and Art. 8 of Directive 2000/43/EC for the other grounds.

How low the evidential threshold lies is shown by three decisions of the Federal Labour Court: 21 January 2021 — 8 AZR 488/19 (comparison with the median as prima facie evidence, § 22 AGG / § 3(2) sentence 1 EntgTranspG); 16 February 2023 — 8 AZR 450/21 (better negotiating skills do not justify a pay difference); 23 October 2025 — 8 AZR 300/24 (a pairwise comparison with a single, highest-paid male colleague suffices for the presumption; a comparison with the median is not required).

For part-time and fixed-term employees this results — as soon as the unequal treatment is linked to a characteristic listed in § 1 AGG (section 2) — in a clear division of work in proceedings: the other side only has to produce the prima facie evidence; anyone who cannot explain a pro rata or deviating benefit on the basis of documented, objective criteria bears the risk. For pay claims, Art. 18 of Directive (EU) 2023/970 contains its own rule on the burden of proof: where employees produce prima facie evidence, the employer must produce evidence to the contrary; for private employers it only takes effect through the national transposing act (transposition proviso, section 6). In Austria, the standard is that of establishing a prima facie case under § 12(12) GlBG (sex) and § 26(12) GlBG (other grounds) respectively (see the Austria section).

9. Time limits and legal consequences: Germany and Austria

Germany works with a very short period for asserting claims and a conditional cap on compensation, Austria with predominantly longer periods and minimum amounts; a dismissal or summary dismissal, by contrast, must be challenged there within 14 days. In Germany, a claim under § 15(1) or (2) AGG must be asserted in writing within two months, unless the parties to the collective agreement have agreed otherwise; in the case of a job application or promotion the period starts when the rejection is received, otherwise when the employee becomes aware of the less favourable treatment. The same two-month period applies to claims under civil law (§ 21(5) AGG).

All the information in the following table consists of statutory requirements, not practical recommendations. For Austria, the table shows only the situations where employment is not established and where promotion is withheld; the time limits for harassment and for pay and material claims are set out in the Austria section.

10. Organisational duties: complaints office, training, job advertisements

In Germany, the employer must take preventive action, provide a means of complaint and make both known — irrespective of whether employees work part-time, full-time, on a fixed-term or on a permanent basis. § 12(1) to (3) AGG requires the necessary measures to protect against less favourable treatment, including preventive measures, and a statement that such treatment is not permitted; suitable training of employees counts as fulfilment of this duty. In the event of breaches, appropriate measures such as a warning, redeployment, transfer or dismissal must be taken.

§ 13(1) AGG gives employees the right to complain to the competent bodies of the establishment, the company or the public authority; the complaint must be examined and the outcome communicated. The Act and the information about the competent complaints office must be made known within the establishment (§ 12(5) AGG). At European level, Art. 26 of Directive 2006/54/EC requires the Member States to encourage employers to take effective measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment in the workplace.

For advertisements for part-time and fixed-term positions there is an additional point: a job must not be advertised in breach of § 7(1) AGG (§ 11 AGG). Art. 5(3) of Directive (EU) 2023/970 requires gender-neutral job vacancy notices and job titles as well as non-discriminatory recruitment processes — effective for private employers only through the national transposing act (transposition proviso, section 6). In Austria, under § 9 GlBG a job must not be advertised for men only or for women only, unless a particular sex is an indispensable requirement of the work; breaches are punished by the district administrative authority under § 10 GlBG with a fine of up to EUR 360.