The State Labour Court recently ruled that by linking an employee’s annual leave entitlement to his age, his employer had unlawfully discriminated against him. In Germany collective bargaining agreements frequently calculate employees’ holiday entitlements by reference to their age. Younger employees tend to receive less holiday than their older peers. This was the case in the collective bargaining agreement for the retail industry in the German State of North Rhine-Westphalia, which provided for 30 days’ holiday for employees aged 20 or under, increasing to 36 days for employees aged 30 or above. An employee’s annual holiday entitlement was based on a 6-day working week, giving employees between 5 and 6 weeks’ annual leave, which is pretty standard for Germany.

These provisions were nonetheless challenged by a 24-year-old employee who claimed they were unlawful, as they discriminated against younger employees. The State Labour Court in Düsseldorf agreed and promptly awarded him 36 days’ holiday per year, being the maximum entitlement under the collective bargaining agreement. The Court said the holiday provisions were clearly age discriminatory (as younger employees were entitled to less holiday than older employees) and seemingly could not be justified, as the employer was unable to put forward any legitimate reasons for the unequal treatment. It seemed that the amount of holiday awarded and the age cut-off was totally arbitrary. The Court rejected the employer’s argument that the provisions were designed to promote “greater compatibility between work and family life”. It has granted it permission to appeal to the Federal Labor Court, although on the facts (in particular the vacuum as to justification) any appeal would seem to have little prospects of success.  

In light of this decision, German employers (and others across Europe) should review any collective bargaining agreements which link holiday entitlement to age because if the Federal Labor Court upholds this decision it means that employees will be able to claim the maximum holiday entitlement under the relevant agreement.