That question came up in an interesting case which was recently before the BAG (Federal Labour Court):

In June 2006 an employer thought about measures to reduce the workforce. The collective bargaining agreement prevented the employer at that time from issuing so called company related redundancies (sog. betriebsbedingte Kündigungen). Therefore, the employer came up with his own scheme: He offered the employees severance payments in case they agreed to end the contract voluntarily. The employer, however, excluded in his offer employees whose age was above 55 years.

An employee, born in 1949 and having worked for the employer since 1971, wanted to be part of that scheme. Feeling discriminated against he took the employer to court.

The action with the aim to be offered the same deal as the younger employees was with no success.

The BAG said that here was no discrimination to begin with. Section 3 AGG proscribes any discrimination on the basis of age. Here, however, the older employees retained their workplace. That is why they are not subjected to less favourable treatment compared to the younger employees who eventually loose their employment or be it with a severance payment. The main objective of Section 3 AGG is to preserve the employment not to function as a means to get out of it.

Also, the plaintiff failed to show that the employer did not stick to his scheme and actually did offer other older employees such a severance payments. In this case he could have invoked the principle of equal treatment by the employer.

http://www.trust7.com/en/foren/faq_and_important_links/equal_treatment_in_pay_increase

(BAG, Urt. v. 25. 2. 2010 – 6 AZR 911/08)


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