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Age Discrimination in Vacation Entitlements

If a labor law regulation provides for unequal treatment in terms of vacation entitlements based on the employee’s age, such regulation is not per se impermissible. In other words: It may be admissible that older employees be granted more vacation days.

In case of a dispute, however, an employer, who pleads that the different treatment was admissible, will have to prove that the practice is justified by a legitimate aim and that the means of achieving that aim are appropriate. This results from a recent decision of the Federal Labor Court (BAG).

Employee brings action for more vacation

In the particular case, a 31-year old employee sued her employer for a higher vacation entitlement. The collective agreement applicable to the employment provided for a basic vacation entitlement of 28 days, while employees over 50 years of age were granted 30 days. According to the claimant, this was a serious disadvantage.

Unequal treatment may be justified

However, any unequal treatment has to be consistent with the provisions of the German General Equal Treatment Act (AGG). The AGG prohibits disadvantages based on age reasons. But the law also provides for exceptions to this basic rule, especially regarding different treatments on grounds of age or professional requirements, provided the employer pursues a legitimate and appropriate aim.

The employer’s positive intention must be clearly evident

As the labor law regulation, on which the unequal treatment is based, must be amenable to judicial review, it should clearly indicate the aim pursued by it. Therefore, the aim underlying the unequal treatment should either be stated directly in the regulation or, at least, be derivable from the context.

After all, in case of a dispute, the employer will have to prove in court that the measure pursues a legitimate aim and that the means of achieving that aim are appropriate. General explanations that the regulation serves to protect older employees will, however, not be deemed sufficient.

Internal revision should be checked before its implementation

In general, the AGG provides that any violation of the prohibition of discrimination of employees will render the regulation concerned ineffective. However, in the case quoted above, the BAG held that the elimination of the discriminating regulation could only be achieved by an “upward” adjustment and that, consequently, the claimant was to be granted a total vacation entitlement of 30 days.

When introducing labor law regulations applying to their employees, companies should always take care not to infringe upon the AGG, as in case of doubt, the regulation concerned might not only be deemed to be ineffective, but the contract might have to be adapted in favor of the suing employee. Our certified specialist attorneys for employment law will be pleased to assist you whenever changes are planned in your organization.

Continue reading:
No need to specify amount of bonus payments in German employment agreements
Drafting employment contracts: How to avoid pitfalls

Dr. Eric Uftring

Dr. Eric Uftring

As a specialized employment attorney, Dr. Eric Uftring mainly focuses on German employment law. He advises clients on concluding and drafting work/service and termination agreements, implementing transfers of undertakings and all types of restructuring pertaining to employment law.

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