A clause in a collective bargaining agreement according to which employees aged 50 years or older are granted extra holiday per year is invalid. This was decided by the Federal Labour Court (Bundesarbeitsgericht, BAG) on 12 April 2016 (docket number 9 AZR 659/14).

In the case at hand, the applicable collective bargaining agreements awarded three additional days holiday for every employee who reached the age of 50 before 2009. Therefore, employees who turned 50 in 2009 or later were not entitled to extra holiday. The plaintiff turned 50 in 2009 and claimed the additional holiday for the period of 2009 until 2012.

The Federal Labour Court ruled that the clause was discriminatory by reason of age according to sec. 7 para. 1 in conjunction with sec. 1 of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG). The discrimination could not be justified by sec. 10 sentence 3 no. 1 AGG. That provision allows distinctions by reason of age under the condition that they are objectively and reasonably justified by the legitimate aim of the protection of older employees. The court did not follow the defendant’s reasoning that increasing age generally goes hand in hand with a growing need for recovery and therefore a longer recuperation period. However, the plaintiff was only awarded with additional holidays for 2012 since for 2009 to 2011 the cut-off period had already passed.

This judgment shows that the Federal Labour Court closely reviews differentiations based on age. In a case in 2015 (docket number 9 AZR 956/12), the court allowed additional holidays starting at the age of 58. In that case, however, the holiday arrangement was made at company level and not in a more general collective bargaining agreement. Therefore it was easier for the employer to prove that – in this case – the production of footwear is physically demanding work and therefore leads to a growing recovery need. In contrast, the blanket statement of the defendant in the current case did not convince the court.