Overtime pay for part-time workers in the EU and EEA – easy as 1-2-3 …?

The question of how part-time workers’ rights should be defined in Europe has returned to the forefront following the CJEU judgment in the case of  KfH, a ruling that has prompted widespread debate across the EU and the EEA. In KfH, the Court evaluated whether part-time workers should be entitled to overtime pay even when their working hours do not exceed those of full-time employees. But, the ruling has also raised broader issues about how atypical forms of work are understood and how national courts should apply qualitative and quantitative criteria when assessing indirect discrimination. The debate has been particularly strong in Norway, where stakeholders remain divided over the ruling’s implications and where the first domestic case is already in progress.

Author: María Camila Salazar Larsen, LL.M. University of Bergen

Approximately 35 million individuals in Europe are employed on a part-time basis. Within the European Union, about 35% of women hold part-time contracts, whereas in the EFTA States, this proportion approaches 60%. In Joined Cases C-184/22 and C-185/22 KfH, a case which has received a great deal of attention in the Norwegian media in the past few months, the core question addressed by the Court of Justice of the European Union (CJEU) was whether part-time workers who perform overtime without exceeding the maximum hours permitted for full-time workers should be entitled to overtime supplementary payment, and the possible consequences of denying such recognition. In its relatively recent judgment, the CJEU held that part-time workers should in fact receive overtime compensation, even when they are not exceeding full-time hourly thresholds, to prevent less favourable treatment and discrimination based on sex. But is the Court’s decision really that simple and straightforward, or are there any conditions attached?

Although the Court’s judgment in KfH was delivered in the summer of 2024, it only seriously started to attract the attention of the public late in 2025. In Norway, for instance, both employers' and employees' organizations have expressed either support for or concern about the Court's decision. In an interview with the Norwegian newspaper VG, the Norwegian Union of Municipal and General Employees (Fagforbundet) argued that the judgments were a major step towards achieving fairness, since it ensures that part-time workers would be treated equally to full-time workers and raises the issue of gender equality. The Norwegian Association of Local and Regional Authorities (KS) has for its part argued that following the CJEU’s decision could have negative effects by increasing costs for employers and making part-time positions more profitable, thereby making full-time positions less attractive in the labour market. The Ministry of Labour and Social Inclusion (Arbeids- og inkluderingsdepartementet) has also said that it is aware of the issue and has designated a working group to study the impact of the CJEU’s ruling on Norwegian law and practice in the field.

Although KfH is a relatively recent judgment, it is far from being the first to address such issues. There is in fact a long line of case-law that determines how indirect discrimination and the rights of part‑time workers are to be assessed. Writing on the issue most recently, Hotvedt (2025) identifies two approaches in the CJEU’s assessment of unequal treatment in pay for part‑time workers: A formal equality approach, as in Helmig, which examines whether part‑time and full‑time employees receive the same overall pay for the same hours worked; and a substantive equality approach, exemplified in Elsner‑Lakeberg, which evaluates whether specific pay conditions impose a burden on part‑time workers. Although the Court has not clarified the relationship between these approaches, Hotvedt (2025) argues that the pro rata temporis principle implied in the latter could better ensure substantive equality, and that both approaches can be complementary when unequal treatment is understood to encompass both direct and indirect discrimination. Notwithstanding the helpful clarity she provides here, the issue does not lie solely in the national implementation of KfH—understood as part‑time employees being recognised overtime pay—but in understanding the CJEU’s judgments per se and the criteria it establishes for national courts when evaluating the scenario at hand.

When determining the existence of less favourable treatment between part‑time and full‑time workers, and when assessing the CJEU’s case-law from the 1960s to 2025, it is certainly possible to identify a positive shift. One could even say that there is a silent revolution in workers’ rights with the enactment of KfH. In my view, the judgment acknowledges that atypical work should not be defined on the terms of typical work. The reality is that part‑time work is performed by a specific segment of the population (composed in its majority by women). And for diverse reasons, which are often linked to the traditional assignment of caregiving responsibilities, this segment is not in a position to participate in full‑time working schemes. It would therefore be unfair to expect individuals who cannot work full‑time to comply with thresholds designed for full‑time workers in order to enjoy rights established by law.

The situation becomes more complex when one considers the CJEU’s position in case-law from the 1980s up to 2025 on the elements that should be used to determine indirect discrimination. The difficulty lies in the fact that the black‑letter law establishes only qualitative factors to be taken into account, while in practice—and more precisely in the case-law—it is permitted (yet not seemingly required) to incorporate quantitative elements into the assessment of indirect discrimination. The definition of quantitative elements refers to the use of numbers or amounts to understand a determined phenomenon. For example, one quantitative element is the use of statistics. By analysing the CJEU’s case-law, using quantitative elements is allowed as long as they are considered significant, meaning that they reflect long-term effects of indirect discrimination for the whole group affected by the legal provision. Given the possibility that national courts may therefore employ different quantitative elements for determining indirect discrimination, potentially reaching divergent conclusions even when pursuing the same objective, this development poses a significant challenge for the uniformity of EU law in practice. For example, as illustrated in KfH, courts may rely on data drawn either from a specific organisation or from the market more broadly, which can make it more difficult to identify the real consequences of the data depending on the chosen approach. Other courts may choose not to employ statistics on the grounds that they reflect little more than the current composition of the workforce. Consequently, the application of the criteria could end up being arbitrary in practice.

It may also pose a risk to homogeneity as a matter of EEA law. The legal bases for the CJEU’s decision in KfH (Article 157 TFEU, Directive 1997/81/EC and Directive 2006/54/EC) are all reflected and incorporated into the EEA Agreement. Consequently, these provisions enjoy a strong presumption of uniform interpretation across both legal frameworks. As a result, and given the lack of any compelling reasons to consider otherwise, the CJEU’s findings in KfH should be regarded as both relevant and applicable to the EFTA States, too. It will be particularly interesting to observe whether and how the EFTA States follow up on the application of the unwritten quantitative elements identified by the CJEU in KfH, given their rather open-ended nature. The first Norwegian approach to addressing this issue will be the case of André Kaldal, which concerns a part‑time employee who has worked more than 2,800 overtime hours and is therefore claiming retroactive payment on the basis of the KfH and Lufthansa Cityline judgments. The case was heard at first instance on 3 and 4 February 2026.

The CJEU’s interpretation in KfH therefore represents an advancement in the conceptualisation of atypical work, while simultaneously signalling a regression in the elements required for determining indirect discrimination, highlighting the existence of an interdisciplinary problem. The interdisciplinary problem stems from the fact that courts need more than legal reasoning to decide whether indirect discrimination is present. They may also need to use quantitative methods and knowledge from other fields outside of their expertise. Barnard and Hepplet (1999) underscore that the central difficulty in using statistics as a primary indicator of indirect discrimination lies in the fact that EU courts lack access to the statistical and social science understanding needed to assess such arguments about disparate impact. The Norwegian media is certainly correct in assuming that KfH contributes to reshaping the legal landscape for part‑time workers, but the full implications of the judgment are only just beginning to unfold. Indeed, the proof will in many cases lie in the pudding, and how the national courts of the EFTA States ultimately choose to understand and apply the quantitative elements identified by the CJEU. My forthcoming case analysis examines these developments in detail.

Note: The full case analysis will be available on nva.sikt.no under the category of student assignments or thesis by the end of February 2026.

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How to cite

Salazar Larsen, María Camila (2026): Overtime pay for part-time workers in the EU and EEA – easy as 1-2-3 …? Blog. EFTA-Studies.org.