The Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on 4 August 2015 (docket number 3 AZR 137/13)that an exclusion from the provision for dependents can be a discrimination on the ground of age, if there are further unjustified conditions. In the present case a widow claimed against the former employer of her deceased husband to pay her the provision for dependents. The employer in turn refused the payment of the dependents provision because of a clause in the husbands employment contract which stated that there is only a claim for a provision for dependents, if the employee got married before he reached the age of 60 (“Spätehenklausel”). The employee got married at the age of 61.

The Higher Labour Court Munich (Landesarbeitsgericht, LAG) dismissed the widow’s claim, but an appeal to the Federal Labour Court was successful. The Court determined that the clause was invalid as discriminatory on the grounds of age according to sec. 7 para. 2 General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG). The question as to whether discrimination had taken place needs to be assessed by reference to the employee in question and not by reference to the surviving dependent. In this case the employee, who got married after the age of 60, was treated unequally.

The Federal Labour Court ruled that the discrimination could not be justified by the exemption clause according to sec. 10 sentence 3 no. 4 General Equal Treatment Act. This clause allows discrimination on the grounds of age under specific conditions in relation to social security. However, this covers only distinctions on the grounds of age for the payment of company pensions, which only applies to pension schemes and provisions for disability, but not provision for dependents. Therefore the discrimination could not be justified in the light of the General Equal Treatment Act. Pursuant to sec. 10 sentence 1 and 2 General Equal Treatment Act the present discrimination could be justified if the unequal treatment is objective, appropriate and there is a legitimate aim which the employer wants to achieve. The Federal Labour Court ruled however that the age limit of 60 years is not appropriate and necessary. Furthermore the employer had stated that the clause was intended to minimize risks and the administrative effort which comes with the provision for dependents; the Federal Labour Court ruled that these arguments are only in the interests of the employer and thereby not a legitimate aim according to sec. 10 sentence 2 General Equal Treatment Act.

In conclusion there was no justification for the discrimination, which led to the invalidity of the clause.