2014/22 How to compensate part-timer for lacking company car (NL)

Summary

Employees of CBR with a workload of 80% or over are eligible for a company car. The plaintiff was a 40% part-time employee and was not eligible for a company car. Instead he received financial compensation. The compensation was designed to represent 40% of the value of the company car benefit for a full-time (80-100%) employee. The Human Rights Commission found that 40% was not enough. The plaintiff should have received 50%, being half of the value of the use of a company car by an 80% employee.

Facts

The plaintiff in this case was employed by the Dutch organisation that is responsible for issuing and withdrawing driving licences, CBR. His position was that of part-time (40%) examiner.
CBR has a policy of providing its full-time (100%) examiners with a company car, which they may use for private purposes without limitation. All expenses related to the car (road tax, insurance, maintenance, petrol, etc.) are for CBR’s account. The same applies to examiners with a part-time contract of between 80% and 100%. In other words, “80-100% part-timers” enjoy the same benefit as full-timers.
Examiners with a contract below 80% are not eligible for a company car. They receive financial compensation instead. This compensation is based on the price CBR pays the company from which it leases its cars. In the relevant period this was a fixed sum of € 160 per car per month plus a certain amount for every kilometre per year driven in excess of a certain contractual maximum. This fixed sum was pro-rated to reflect the employee’s part-time percentage. 

The plaintiff felt discriminated against. He had two arguments. The first was that he was paid only 40% of value of the benefits enjoyed by an 80 to 100% examiner. Given that his workload was half that of a 80% examiner, he should have been paid half of that value, i.e. 50%. His second argument related to the fact that some of his 80-100% colleagues used their company car for more kilometres per year than the maximum covered by the fixed sum of € 610. In respect of those colleagues, CBR paid the lease company an additional sum without requiring the employee in question to contribute. The plaintiff argued that this constituted an additional benefit for the value of which he should also be compensated.
The plaintiff applied to the Dutch Human Rights Commission (formerly, the Equal Treatment Commission) for an opinion on whether CBR discriminated against him on the basis of Article 7:648 of the Civil Code (‘Article 648’), which transposes Clause 4 of the Framework Agreement on Part-time Work annexed to Directive 97/81. Clause 4 provides:

“1.In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part-time unless different treatment is justified on objective grounds.
2.Where appropriate, the principle of pro rata temporis shall apply.”

Opinion

The Commission began by examining whether the right to use a company car for private purposes is a term of employment within the meaning of Article 648. Having decided affirmatively, it proceeded to address two questions: has the plaintiff been discriminated against on the basis of working part-time and, if so, is that unequal treatment objectively justified?
In previous cases, the Commission held that it is impossible to quantify exactly the advantages of a ‘company car benefit’ for the employee or the cost of such a benefit for the employer. When comparing (i) a company car benefit with (ii) a benefit consisting of compensation in lieu of having the use of a company car (a ‘compensation benefit’), the criterion is whether the benefits are ‘equivalent’ in value. An exact comparison is neither possible nor necessary.
The comparator for the purpose of Article 648 need not be a 100% examiner. The plaintiff could compare himself to an 80% examiner. Given this fact, it must be concluded that the plaintiff is treated less favourably than a 80% examiner (i) by the fact that he receives compensation equal to 40% instead of 50% of what an 80% examiner receives and (ii) by the fact that the value of being able to drive more than the annual maximum mileage at CBR’s expense is not taken into account for the purpose of calculating the value of the company car benefit.
The Commission held that CBR failed to provide adequate justification for the unequal treatment and that, therefore, it was in breach of the law.

Commentary

Car arrangements frequently attract disputes. Employers routinely argue that the right to use a company car does not constitute ‘pay’, even if the employee may use the car privately. Some courts have accepted this argument, but most do not, rightly so.
This case may provide ammunition to those critics of the equal treatment legislation who decry the ‘nit-picking’ it sometimes elicits. Categorising not-quite-pro-rata compensation for lacking a company car as a human rights violation seems to be stretching that concept quite far.
This case differs from those where the issue is centred around the employee’s ‘own use contribution’. It is not unusual for a part-time employee to have the right to use a company car in the same manner as his or her full-time colleagues, with the only difference being the amount deducted from salary in consideration of that use. In one of those cases, a company charged its full-time employees a certain amount by way of ‘own use contribution’ and charged its part-time employees an additional 12.5% of that amount for every 5% of workload reduction. Thus, for example, an 80% employee had to pay 4 x 5 = 20% extra and a 50% employee was charged 150% of the sum charged to a full-timer. There are many ways to (attempt to) pro rate car benefits, but none of them guarantees exact ‘pro-rating’.

Subject: discrimination - part-time work
Parties: X - v - CBR
Instance: College voor de Rechten van de Mens (Human Rights Commission) (not a court)
Date: 6 February 2014
Case Number: 2014-12
Publication: www.mensenrechten>oordeel>case number