Additional vacation for older employees remains possible

In a judgment dated October 21, 2014 (docket number: 9 AZR 956/12) the Federal Labour Court (Bundesarbeitsgericht, BAG) ruled that an employer may grant older employees additional vacation days.

In the case at hand, the employer, a shoe manufacturer, granted employees who worked in the production department 36 days of vacation per year after reaching the age of 58 while all other employees were entitled to only 34 days of vacation per year. The plaintiff, a female employee born in 1960, argued that she was discriminated against on the basis of her age by this regulation and claimed two additional days of vacation. The court rejected the claim. According to Sec. 10 sentence 3 no. 1 of the General Equal Treatment Act, different treatment on the grounds of age may be permissible to protect older employees. However, the means to achieve this aim have to be appropriate and necessary (Sec. 10 sentence 2 of the General Equal Treatment Act). The court held that the employer does not exceed his management scope and discretionary power if he decides that older employees who work in physically demanding jobs in the production department need more time for recovery. Therefore, granting these employees two additional days of vacation is an appropriate measure to achieve this aim.

This judgment is only one of several judgments dealing with the question of age discrimination where extra days of vacation are granted to older employees. In 2012, for example, the Federal Labour Court ruled that a provision in the collective bargaining agreement for the public sector (Tarifvertrag des öffentlichen Dienstes, TVöD) according to which employees under 30 were entitled to 26 days of vacation per year, employees between 30 and 39 received 29 days per year and employees above the age of 40 were granted 30 days per year discriminated against the younger employees and was therefore invalid. These contradictory judgments allow the conclusion that the justification for different treatment of younger and older employees always depends on the circumstances of the particular case, eg whether the employees do physical work or “office work”.