Labour law

The previous collective labour agreement for public-sector employees (Bundes-Angestelltentarifvertrag BAT), which was in force from April 1st, 1961 to September 30, 2005, rendered the size of salary, among other things, dependent on age. Salaries increased with progressive age. This constitutes unlawful discrimination of younger employees according to the German Federal Labour Court (BAG) and the ECJ. Since October 1st 2005 the new tariff contract for public service (TVöD) is in action.

Age limit for young scientists

Federal Labour Court, judgment of 06.04.2011 - 7 AZR 524/09

The plaintiff, born in 1968, was employed by the defendant University from 2003 until 2007 on a fixed-term basis. His job was the promotion of young scientists to be prepared for the habilitation and also included teaching duties.

A decision of the University Rectorate stipulated that the temporary recruitment of scientific staff is permissible only if the employment relationship ends before the age of 40 - in exceptional cases at the latest six months later.

In 2007, the plaintiff was 39 years old. He and the university signed an alteration to the employment contract, under which the plaintiff was employed on a temporary basis until 2008. Without the resolution of the Rector, the employment contract would have been agreed beyond 2008, in any case for a period up to 2009.

The time limitation within the alteration of contract constitutes age discrimination according to § 7 ​​par. 1 AGG, which is not justified by objective reasons. There is also no reason for § 10 AGG, in accordance with which a different treatment on grounds of age is also permissible if it is objectively and reasonably justified by a legitimate aim.

The limitation has been declared by the court to be invalid.

 

Agreed Maximum age limit for pilots

Federal Labour Court, judgment of 08.12.2010 - 7 ABR 98/09

An airline company has determined a maximum age of 32 years for hiring pilots that have been trained by other airlines.

The age limit regulation thus limits the freedom of choice of employment for older job applicants.

A collective contractual agreement with the company that limits the maximum age for pilots trained by other airlines to 32 years is therefore invalid.

 

Age limit for Flight Captain

Regional Labour Court, Lower Saxony, judgment of 26.01.2012 - 7 Sa 1362/08

The plaintiff was born in 1948 and has been employed by the defendant as a flight captain since 1977. According to the framework agreement on employment conditions applicable to his employment, the age limit for pilots is 60 years of age. Pursuant to Section 27 subparagraph 1 of the Agreement, the employment relationship of the Cockpit Personnel without termination is terminated no later than the end of the month in which the age of 60 is reached. As a result, the employment relationship would end automatically from 2008 onwards.

The plaintiff seeks to establish that his employment relationship also extends beyond February 2008.

The Federal Labour Court sought a preliminary ruling from the European Court of Justice and asked whether EC Directive 78/2000 and / or the general principle of non-discrimination on grounds of age would preclude national rules (in this case the framework agreement on employment conditions, which recognizes an age-limit scheme for reasons of flight safety). The European Court of Justice replied that the provisions of the AGG would also apply to collective agreements concluded before the AGG came into force. Finally, discrimination on grounds of age would continue until the age limit is reached. This point in time constituted the applicability of the AGG. It was not necessary to withdraw the flight license from the pilot, who had reached the age of 60. According to international regulations, a pilot can continue to be deployed at the age, "if he is a member of a flight crew consisting of several pilots, and the other pilots have not yet turned 60."

The Regional Labour Court of Lower Saxony therefore ruled that the employment relationship was not terminated by the regulation in the framework agreement. The plaintiff is disadvantaged by the scheme on the basis of his age, which constitutes a violation of Sections 1, 7 subparagraph 1 of the AGG. Section 27 of the collective bargaining agreement continues to infringe EC Directive 78/2000 and is therefore ineffective.

© Büro zur Umsetzung von Gleichbehandlung e.V. 2011