“Late marriage” clause in pension schemes is an age discrimination

A “late marriage” clause that requires for payment of the survivor’s pension that the employee, entitled to pension benefits, was getting married before reaching the age of 60 is invalid according sec. 7 para. 2 of the General Equal Treatment Act (AGG). This was decided by the Federal Labour Court (Bundesarbeitsgericht, BAG) on 4 August 2015 (ref.no. 3 AZR 137/13).

In the case at hand, the employer refused to pay survivor’s pension, because the former employee was getting married in the age of 61. The pension plan contained a “late marriage” clause on the age of 60.

The Federal Labour Court ruled that the employee was discriminated due to age. The discrimination could be justified neither indirect nor in analogous application of sec. 10 sentence 3 no. 4 AGG. That provision allows distinctions according to age under eased conditions in occupational social security schemes. However, this provisions is only applicable on the old age and disability care and not on the survivor’s pension. The conditions for justifying a discrimination due to age, as set forth in sec. 10 sentence 1 and 2 AGG,  are not met. The “late marriage” clause leads to an unduly prejudicing legitimate interests of employees entitled to pensions.

This jurisdiction of the Federal Labour Court is surprisingly. In the past, “late marriage” clauses have been regarded as admissible. The employer was allowed to determine the group of eligible survivors freely. The new jurisdiction will lead to higher financial risks of the employer.