By judgment of 20.02.2018 (3 AZR 43/17) the Federal Labour Court has ruled that a so-called “age difference clause” (Altersabstandsklausel) providing that spouses receive a survivor’s benefit only if they are no more than 15 years younger than the deceased former employee is admissible.

The plaintiff was born in 1968. She married her husband, who was born in 1950 and died in 2011, in 1995. The plaintiff’s deceased husband was granted a survivor’s pension promise by his employer. The pension scheme provided that spouses receive a survivor’s benefit only if they are no more than 15 years younger than the beneficiary (former employee). The plaintiff considered that clause to be inadmissible discrimination on grounds of age.

The Federal Labour Court dismissed the case and stated that the direct discrimination on grounds of age (according to the General Law on equal treatment [Allgemeines Gleichbehandlungsgesetz]) caused by the age-difference clause is justified. The employer who grants a survivor’s pension has a legitimate interest in limiting the associated financial risk. According to the Court, the age difference clause is also necessary and appropriate. It does not unduly prejudice the legitimate interests of the employees entitled to benefits who are affected by the clause. At an age difference of more than 15 years, the common standard of living of the spouses is designed in such a way that the survivor spends part of his life without the beneficiary (deceased former employee). In addition, with an age difference of more than 15 years only those spouses are excluded from benefits whose age difference to the beneficiary (deceased former employee) considerably exceeds the “usual” age difference between spouses.

The ruling creates legal certainty, since until now it had not been clarified by the highest court, whether age difference clauses with regard to survivor’s benefits are in in accordance with the General Law on equal treatment.