Federal Labour Court, 20.03.2012, Ref.: 9 AZR 529/10
In Germany, employees' holiday entitlement is regulated in the Minimum Holiday Act for Employees (Bundesurlaubsgesetz; BurlG).
The purpose of the Federal Leave Act is to regulate the minimum holiday entitlement of employees and thus serves the purpose of social labour protection in particular.
According to § 2 BurlG, employees within the meaning of the law are blue-collar and white-collar workers as well as those employed for their vocational training. Employees are also persons who are to be regarded as employee-like persons due to their economic independence.
Pursuant to Section 3 (1) BurlG, every employee is entitled to paid holiday leave of at least 24 working days per calendar year. of at least 24 working days within a six-day week, otherwise 20 working days.
The BurlG does not link the number of holiday days to the age of the employee.
Since the General Equal Treatment Act (AGG) came into force, it is generally no longer tenable to stagger the length of holiday according to age, as was the case in Section 26 (1) sentence 2 of the collective agreement for the public sector (TVöD).
§ Section 26 (1) sentence 2 of the collective agreement provides in this respect:
Employees are entitled to holiday leave with continued payment of remuneration in each calendar year (§ 21). If the weekly working time is spread over five days per calendar week, the holiday entitlement in each calendar year is as follows
26 working days up to the age of 30,
up to the age of 40 29 working days and
30 working days after the age of 40.
In the above-mentioned judgement, the Federal Labour Court has now ruled that the differentiation of the length of leave according to age in Section 26 (1) sentence 2 TVöD directly disadvantages employees who have not yet reached the age of 40 and therefore violates the prohibition of discrimination on the grounds of age.
FactsThe plaintiff, who was born in 1971 and has been employed by the defendant (district) since 1988, sought a declaration that she was entitled to an additional day's holiday in each of the years 2008 and 2009, and thus even before she reached the age of 40, over and above the 29 working days of holiday provided for in the collective agreement.
In their opinion, the age-dependent staggering of holiday periods in Section 26 (1) sentence 2 TVöD violated the prohibition of discrimination on the grounds of age.
The labour court initially appealed to upheld her claim in a ruling dated 8 July 2009 (Ref.: 3 Ca 140/09), but the Berlin-Brandenburg Regional Labour Court partially overturned this decision following an appeal by the defendant district in a ruling dated 24 March 2010 (Ref.: 20 Sa 2058/09).
Federal Labour CourtThe plaintiff's appeal against this decision has now been successful before the Ninth Senate of the Federal Labour Court and has therefore led to the Labour Court's decision being restored.
In the opinion of the Federal Labour Court, the plaintiff was entitled to one additional day of leave as substitute leave for the years 2008 and 2009.
According to the BAG, the differentiation of the length of leave according to age in Section 26 (1) sentence 2 TVöD directly discriminates against employees who have not yet reached the age of 40 and therefore violates the prohibition of discrimination on the grounds of age.
In this respect, the staggering of holidays under the collective agreement does not pursue the legitimate aim of taking into account the increased need for relaxation of older people.
Source: Federal Labor Court
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