In a decision dated 20 March 2012 (docket no. 9 AZR 529/10),
which caused quite a stir, the BAG ruled that the scaling of
holiday claims according to age pursuant to the Collective
Agreement for the Public Service (TVöD) was age discriminatory
and therefore invalid. In the opinion of the BAG, such unequal
treatment can only be remedied with an "upwards"
adjustment, that is to say by granting the full holiday claim to
all age groups.
Pursuant to Sec. 26 para. 1 TVöD, the scaled holiday claim for
an employee working a five-day week is 26 work days if such
employee is under the age of 30, 29 work days if under the age of
40, and 30 work days after reaching the age of 40. The claimant
wanted the court to establish that she was already entitled to the
maximum claim of 30 days' holiday before she was 40. She deemed
the holiday scale to be an impermissible age discrimination.
The BAG initially established that the holiday scale directly
disadvantages employees under the age of 40. Upon further
examination, the BAG could not find any justification for this
disadvantage. The unions, the case law of several regional labour
courts and prevailing legal literature have thus far considered an
age-based holiday scale to indeed be justified on grounds of the
legitimate purpose of considering older employees' increased
need for recreation time. However, an employee's increased need
for recreation time from as early as the age 30 or 40 was not
acknowledged by the BAG, and it derived herefrom a violation of the
prohibition of age discrimination. This could only be remedied
through an "upwards" adjustment, that is to say by
granting the full holiday claim to all employees irrespective of
their age. The 39-year-old claimant was subsequently awarded a
further day of holiday for each of the years 2008 and 2009 as
In practice, this decision has far-reaching consequences: The
decision, which is currently still only available in the form of a
press release, suggests that although an age-based scaling of the
duration of the holiday is not ruled out from the outset, the
scaling must be correctly chosen in order to duly take into
consideration the increased need for recreation time of older
employees. Hence, age scales as of the age of 50 or 60 could
certainly be legitimate. Employers should therefore check whether
the holiday scales contained in the applicable collective
agreements or shop agreements meet these requirements and adjust
them where applicable.
Not yet clarified is the important follow-up question of whether
employees affected by this are now also entitled to claim
retroactive compensation for holiday for concluded holiday years.
We consider it unlikely that the Federal Labour Court's
decision will only apply to the new holiday year 2012. Employers
confronted with corresponding claims should therefore initially
refer to the applicable collectively or individually agreed
preclusion periods, respectively transitional periods. Following
the case law of the ECJ on the accumulation of holiday claims (cf.
our Newsletter IV/2011), one could also argue that only holiday
claims accrued within the last 15 or 18 months after the end of the
respective holiday year must be corrected (see in this connection
ECJ dated 22 November 2011, docket no. C-214/10; Regional Labour
Court [Landesarbeitsgericht, LAG] Baden-Württemberg
dated 28 December 2011, docket no. 10 Sa 19/11). In the worst case
scenario, however, a retroactive compensation of holiday claims
extending back as far as the general threshold of the statute of
limitation is possible, i.e. for the last four years. Which
solution will be chosen by jurisprudence remains to be seen.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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