Additional holiday for older Employees

BAG, judgment dated 21.10.2014, 9 AZR 956/12 Press Release no. 57/14

Age-related graduating of holiday entitlement can be admissible if necessary, appropriate and justified by a legitimate objective.

The Defendant employer is a shoe company, not bound by a collective wage agreement, that grants its production workers two additional days of recuperation holiday per calendar year after reaching the age of 58. The Claimant, born in 1960, is of the opinion that this constitutes inadmissible discrimination against younger employees. The Claimant should also receive 36 instead of the previous 34 days holiday.

Age-related graduation of holiday entitlement can be admissible.

The Federal Labour Court dismissed the legal action. The employer’s actions do not constitute inadmissible age discrimination. This ruling does result in unequal treatment of younger employees compared to their older colleagues. However, given the presence of particular employment and working conditions, this can be justified in the interests of ensuring the occupational protection of older employees.

Ensuring the occupational employment of older employees is a legitimate objective

In the view of the Federal Labour Court, the employer is justifiably entitled to assume that employees who perform physically tiring and heavy work producing shoes in its production plant require longer recuperation periods than younger colleagues after reaching the age of 58. The granting of two additional days holiday is a suitable, necessary and appropriate means of achieving this legitimate objective. The age-related graduation of holiday entitlement was therefore considered admissible under Section 10 Subsection 3 No. 1 AGG (General Equality of Treatment Act).

Summary

In its judgment dated 20 March 2012, file ref. 9 AZR 529/10, the Federal Labour Court declared that the age-related graduation of holiday entitlement in the public sector collective wage agreement (TVÖD) was inadmissible. The TVÖD provided for a graduation of 26 days (up to age 30), 29 days (up to age 40) and 30 days (from age 40). A number of collective wage agreements and employment contracts were “corrected” as a result. The 9th Senate has now made it clear that age-related graduation of holiday entitlement does not generally constitute inadmissible discrimination. It can be justified for the purpose of protecting older employees, particularly those who carry out strenuous physical work.