ECJ Judgment of 01/19/2010, Case C-555/07
In the Mangold judgment of 2005, the Court of Justice acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law. Directive 2000/78 on equal treatment in employment and occupation gives expression to that principle.
Under Section 622(2) German Civil Code (BGB), the notice periods which an employer must comply with in the case of dismissal increase progressively according to the length of the employment relationship.
However, periods of employment completed by an employee before reaching the age of 25 are not taken into account for calculating the period.
In the ECJ Judgment of 01/19/2010 (Case C-555/07) the employee in question had been employed by the company since the age of 18. At the age of 28, she was dismissed by that company, with one month’s notice. The company calculated the notice period as if she had three years’ length of service, although she had worked for it for ten years: in accordance with the German legislation, no account was taken of the periods of employment completed the employee was 25.
The Court of Justice examined those questions on the basis of the general principle of European Union law prohibiting all discrimination on grounds of age, as given expression by Directive 2000/78.
The Court found that the rule on dismissal contains a difference of treatment based on age. The rule gives less favourable treatment to employees who have entered the employer’s service before the age of 25. It thus introduces a difference of treatment between persons with the same length of service, depending on the age at which they joined the undertaking.
The Court therefore concluded that European Union law, more particularly the principle of non-discrimination on grounds of age as given expression by Directive 2000/78, precludes national legislation such as the German rule which provides that periods of employment completed by an employee before reaching the age of 25 are not taken into account in calculating the notice period for dismissal.
Source: ECJ
