Since 2006, when the General Equal Treatment Act came into force
in Germany, most decisions about discrimination have dealt with
alleged discrimination based on age. Is this surprising? Probably
not. According to the Federal Anti-Discrimination Agency in
Germany, every fifth German claims to have already experienced
discrimination at work based on age.
However, the companies' attempts to actively promote the
older employees might give rise to employee claims as well. The
Federal Labor Court in Germany has dealt with reverse
discrimination claims on multiple occasions. This time, it also had
to decide on the question: Is it lawful to grant older employees
more holidays than younger ones? Or does that discriminate young
Seven employees in a German shoe factory claimed to be
discriminated because of their age. They were granted 34 days of
leave in their employment contract. At the age of 58 or above, the
employer granted two more days of vacation. All of the claimants
were between the ages 45 and 56 and requesting 36 instead of 34
holidays. The employer, however, rejected such claim by arguing
that his "duty to care" required him to grant older
employees more days of leave in order to ensure their continued
capability to work.
The German Federal Labor Court ruled that granting more holidays
to older employees would "not necessarily" be age
discrimination (9 AZR 956/12) and asserted two additional
days of leave would not constitute a necessary protection for the
respective claimants. An employee at the age of 58 or above would
have a reduced physical resilience and would need more rest time
and recovery than a younger colleague. The court also took into
consideration the fact that work at a shoe factory would be
physically demanding. The Court rejected all claims.
However, this recent decision should be applied with
Back in 2012, the Federal Labor Court decided that a collective
agreement which distinguished the number of days of leave depending
on age was a violation of the General Equal Treatment Act in
Germany. The collective agreement granted more holidays for older
employees. The number of days was based on the employee's age.
Employees 29 years old and younger were entitled to 26 days, and at
the age of 30 and above, they were entitled to 29 days. At the age
of 40 and older, employees were entitled to 30 days of leave. The
Court ruled that this was a discrimination of the younger
What are the consequences for employers?
The court indicated that the legitimacy of such additional
benefits for the elderly depends on the circumstances of the
individual case. To avoid the allegation of a discrimination based
on age, it is up to the employer to prove that more holidays for
older employees are a result of "a necessary and appropriate
protection." It goes without saying that physically demanding
work in a factory and a typical white collar job require for
different legal treatment.
The recent decision by the Federal Labor Court should not be
interpreted to mean that employers should take the initiative to
increase the vacation entitlement of older employers and allocate
vacation dependent on the respective employees' age. In fact,
to avoid the risk of reverse discrimination claims, it seems wiser
not to differentiate at all.
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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