If notice of dismissal given to a female employee based on the circumstantial evidence she presents, direct age discrimination under § 22 of the German General Equal Treatment Act (AGG) will be presumed and if the employer is unable to refute this presumption, the notice of dismissal will be invalid even if it is given in a small enterprise (German Federal Labor Court, judgment of 23 July 2015 – 6 AZR 457/14)
Termination contained reference to "pension entitlement"
The plaintiff was born on January 20, 1950. She had been employed as a physician's assistant (in the laboratory) in the physician's practice since December 16, 1991. In 2013, there were also four younger employees working in the practice. The owners of the practice gave the plaintiff notice of termination of her employment, due to changes in the laboratory field. For that reason, the whole practice had to be reorganized. The reason given was that the plaintiff was "meanwhile entitled to a pension". The other employees were not given notice.
Plaintiff sees herself discriminated because of her age
In her lawsuit, the plaintiff opposes the validity of the dismissal and demands compensation for age discrimination; because the notice of dismissal allowed the presumption of age discrimination.
Defendant asserts plaintiff is less qualified
According to the defendant, the notice of dismissal was given because of an anticipated elimination of 70 to 80 percent of the billable laboratory services. Furthermore the plaintiff was not comparable to the other physician's assistants because she was less qualified.
Claim for compensation consists
Unlike the lower-instance courts, the German Federal Labor Court admitted the claim, because the dismissal violates the prohibition of discrimination, § 7 (1) of the General Equal Treatment Act. The defendant did not offer sufficient proof that the age discrimination to be presumed did not exist because of the mention of her "pension entitlement". The matter was remanded to the Regional Labor Court of Saxony for review of the claim for compensation.