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Discriminatory dismissals invalid even in small operations

Following a recent judgment by the Federal Labour Court (Bundesarbeitsgericht, BAG), discriminatory dismissals will also be invalid in small operations in which the strict rules protecting employees against dismissals do not apply (judgment dated 23 July 2015, docket number 6 AZR 457/14).


In the case at hand, the plaintiff, an employee, worked in a doctor’s office as an assistant. Aside from her, there were four other employees who were all younger. At the time of termination, the employee predominantly worked in the practice’s laboratory.


In May 2013, her employer dismissed her due to changes in the laboratory services, which required a restructuring. In the termination letter, the employer specified that she was dismissed and also referred to her as having reached pension age. The other – younger – employees were not given notice.
The employee subsequently brought an unfair dismissal claim, arguing that she had been selected for dismissal due to her advanced age. The employer stated that he had only intended to be friendly when he referred to her pension age in order to explain why she was selected. Due to the entrepreneurial changes, the need for laboratory services had decreased by 70-80%. Also, the employer argued that the other employees were better qualified, which is why the employee was selected for dismissal.


While the courts of first and second instance dismissed the claim, the Federal Labour Court reversed these decisions. The court held that the dismissal was discriminatory on grounds of age. As the employer had referred to the employee’s age in the dismissal letter, there was sufficient proof to assume that age was a determining factor for the dismissal. As the burden of proof to demonstrate that age did not influence the decision was then on the employer, who was unable to demonstrate this, the employee therefore prevailed.