We use cookies to give you the best online experience. By using our website you agree to our use of cookies in accordance with our cookie policy. Learn more here.Close Me
Federal Labor Court (BAG), judgment of Dec.
11, 2018 – 9 AZR 161/18
An enhanced vacation entitlement on grounds of
age where employees who have not yet reached the age of 50 are
granted at least three days less vacation than older employees
violates the prohibition of discrimination of Sec. 7(1) in
conjunction with Sec. 1 AGG. According to the BAG, such a direct
discrimination by means of an "upward adjustment" results
in the discriminated employees also being entitled to these
additional vacation days each calendar year before the age of
50.
The plaintiff, born in 1959, has been employed
by the Land Hesse since 1991 as a teacher for nursing professions.
The vacation regulation for officials in the Land Hesse (HUrlVO),
which was originally to be applied between the parties, provided
for an enhanced vacation entitlement on grounds of age. According
to this regulation, officials who had reached the age of 50 were
entitled to 33 vacation days. The plaintiff's employment
relationship was transferred to the defendant as part of a transfer
of business. The defendant concluded with the union ver.di the the
collective bargaining agreement "Manteltarifvertrag
Universitätsklinikum Gießen und Marburg GmbH"
(MTV UKGM), which provided for an enhanced vacation
entitlement on grounds of length of service. In addition, MTV UKGM
included a grandfather clause requiring employees who, inter alia
pursuant to the HUrlVO, were entitled to additional vacation
days at the time the MTV UKGM entered into force to be still
granted this vacation entitlement.
After unsuccessfully claiming three additional
vacation days in 2013, 2014 and 2015, the plaintiff demanded three
days of replacement vacation for each of the years 2013 to 2016
inclusive. He took the legal view that the enhanced vacation
entitlement on grounds of age in the HUrlVO discriminated against
him on grounds of his age. The lower courts upheld the
complaint.
In its appeal admitted by the German Higher
Labor Court (LAG), the defendant requested dismissal of the claim -
without success. The BAG awarded the plaintiff a claim for damages,
aimed at granting replacement vacation days as restitution in kind.
The enhanced vacation entitlement of the HUrlVO, according to which
those employees who have not yet reached the age of 50 are granted
three days less vacation than older employees, directly
discriminates younger employees on grounds of age within the
meaning of Sec. 3(1) AGG and is therefore ineffective pursuant to
Sec. 7(2) AGG.
The court stated that this difference of
treatment is not justified either. According to the BAG, the
defendant has not substantially demonstrated in accordance with
Sec. 10 AGG that the difference of treatment on grounds of age
resulting from the enhanced vacation entitlement is justified by a
legitimate aim.
According to the BAG, the defendant's
alleged empirical principle that an increased need for vacation and
a longer regeneration period can generally, i. e. across all
employment groups, be assumed as a result of a decrease in the
physical capacity of employees over the age of 50, does not exist
in this generality. The defendant has not substantiated the
specific circumstances for the assumption that all employees bound
by collective agreements who have reached the age of 50, have an
increased need to recover compared to other employees, regardless
of the activities performed. In this respect, the blanket
references of the defendant were insufficient.
Therefore, the contested provisions are to be
applied to the plaintiff - by way of an "upward
adjustment" - as if he had already reached the age of 50 upon
entry into force of MTV UKGM, resulting in a higher vacation
entitlement.
Conclusion
The BAG consistently upholds its previous case
law on enhanced vacation entitlement on grounds of age (BAG Apr.
12, 2016 - 9 AZR 659/14) and therefore also provides for an
increased degree of legal certainty in practice. It is to be noted
that a submission regarding a permissible difference of treatment
on grounds of age pursuant to Sec. 10 AGG must be sufficiently
substantiated.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
ACAS highlights in its guide for managers on Bullying and Harassment at Work that ‘strong management can unfortunately sometimes tip over into bullying behaviour.'
Employers may at some point need to restructure or reshape the way in which they work. This could reflect a change in workloads or budget but will usually involve some element of a change to job
A question often asked by employers in the United Kingdom that are facing a strike or other forms of industrial action is whether they can engage agency workers
The harm caused by tax avoidance, money laundering, corruption or the misuse of data is substantial, yet 85% of respondents to the European Commission's 2017 public consultation expressed the view...
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
