Age discrimination in Germany

Introduction

The General Equal Treatment Act (ETA) prohibits discrimination on a number of reasons including age. Prohibited are direct discrimination, indirect discrimination, harassment and victimisation.

Forms of discrimination

Direct discrimination occurs where a person is treated less favourably than another is, has been or would be treated in a comparable situation on reasons of age. The individual must actually suffer a disadvantage – the mere danger of a disadvantage is not sufficient.

Indirect discrimination occurs where an apparently neutral provision, criterion or practice would put people of a certain age at a particular disadvantage compared with others, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Harassment is considered to be discrimination when unwanted conduct related to age takes place with the purpose or effect of violating an individual’s dignity and of creating an intimidating, hostile, degrading, humiliating or offensive environment.

Victimisation is where a person is treated less favourably because he/she has exercised their rights under the Act not to be discriminated against on the reasons of age, have refused to comply with instructions that are in breach of the ETA or have helped another person to exercise such rights or refuse to comply with such instructions (for example by giving evidence on that other person’s behalf).

When is discrimination prohibited?

Discrimination is prohibited in relation to recruitment, opportunities for promotion, training or receiving any other benefits and terms and conditions of employment.

Can discrimination be justified?

A difference in treatment can be justified by a legitimate aim. The measures take to achieve the aim must be reasonable and necessary. Harassment cannot be justified.

Who must not discriminate?

The ETA applies to all employers irrespective of the business carried out by the employer. It applies to both the private and public sector. It prohibits discrimination by employers, colleagues and third parties such as contractors.

Who is protected?

The ETA prohibits discrimination against employed people (job applicants, employees, apprentices, individuals due to his/her economic dependence, ex-employees).

Self-employed people and legal representatives of companies (for example, board members and managing directors) are also protected insofar as they must not be discriminated against in relation to access to their professional activities and career development.

The law protects all employees irrespective of their age and, therefore, protects both older and younger employees.

Length of service criteria

It may be possible to justify using length of service in setting benefits or minimum requirements for access to employment in another position in accordance with the principles set out above.

Retirement ages and procedures

The current statutory pension age is between 65 and 67 depending on the year of birth. Reaching the statutory pension age does not result in an automatic termination of the employment relationship unless this has been agreed upon.

In certain circumstances employees may decide to retire before reaching the statutory pension age once they are entitled to a full or partial state pension. Age requirements in terms of entitlement to a partial state pension depend on the employee’s year of birth.

Employees can continue to work after reaching the statutory pension age if the employment contract does not provide for an automatic termination, the employee does not decide to retire and if his/her employer does not effectively give notice of termination in order to retire him/her.

Protection against dismissal

There is no specific prohibition against dismissing a person because of their age. As with any dismissal, it is the normal statutory protection against dismissal which applies. In order to comply with European Union Law a dismissal that is discriminatory under the provisions of the ETA has to be interpreted as not socially justified and thus invalid. It is therefore strongly recommended that individuals should not be dismissed because of their age.
It is unlawful to victimise a person by dismissing him/her because he/she has exercised their rights under the ETA having been subject to age discrimination, have refused to comply with instructions that are in breach of the Act or have helped another person to exercise his/her rights or to refuse to comply with such instructions (for example by giving evidence on that other person’s behalf).

Discriminatory agreements

Any discriminatory provision in an agreement will be held to be ineffective.

Enforcement and penalties

Employees who wish to bring a claim for damages must assert their claim in writing within two months of the refusal of their job application, their failure to be promoted or after becoming aware of the discrimination. Collective bargaining agreements can provide that the claim must be asserted within a different period. A claim for damages must be filed with the competent court within three months of the claim having been asserted in writing.

Further information on age discrimination in Germany is available from our International Employment Issues microsite.