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Update Employment Law July 2019

Enhanced Vacation Entitlement on Grounds of Age Violates the Prohibition of Discrimination of the German General Act on Equal Treatment (AGG)

Federal Labor Court (BAG), judgment of Dec. 11, 2018 – 9 AZR 161/18

An enhanced vacation entitlement on grounds of age where employees who have not yet reached the age of 50 are granted at least three days less vacation than older employees violates the prohibition of discrimination of Sec. 7(1) in conjunction with Sec. 1 AGG. According to the BAG, such a direct discrimination by means of an "upward adjustment" results in the discriminated employees also being entitled to these additional vacation days each calendar year before the age of 50.

The plaintiff, born in 1959, has been employed by the Land Hesse since 1991 as a teacher for nursing professions. The vacation regulation for officials in the Land Hesse (HUrlVO), which was originally to be applied between the parties, provided for an enhanced vacation entitlement on grounds of age. According to this regulation, officials who had reached the age of 50 were entitled to 33 vacation days. The plaintiff's employment relationship was transferred to the defendant as part of a transfer of business. The defendant concluded with the union ver.di the the collective bargaining agreement "Manteltarifvertrag Universitätsklinikum Gießen und Marburg GmbH"  (MTV UKGM), which provided for an enhanced vacation entitlement on grounds of length of service. In addition, MTV UKGM included a grandfather clause requiring employees who, inter alia pursuant to the HUrlVO, were entitled to  additional vacation days at the time the MTV UKGM entered into force to be still granted this vacation entitlement.

After unsuccessfully claiming three additional vacation days in 2013, 2014 and 2015, the plaintiff demanded three days of replacement vacation for each of the years 2013 to 2016 inclusive. He took the legal view that the enhanced vacation entitlement on grounds of age in the HUrlVO discriminated against him on grounds of his age. The lower courts upheld the complaint. 

In its appeal admitted by the German Higher Labor Court (LAG), the defendant requested dismissal of the claim - without success. The BAG awarded the plaintiff a claim for damages, aimed at granting replacement vacation days as restitution in kind. The enhanced vacation entitlement of the HUrlVO, according to which those employees who have not yet reached the age of 50 are granted three days less vacation than older employees, directly discriminates younger employees on grounds of age within the meaning of Sec. 3(1) AGG and is therefore ineffective pursuant to Sec. 7(2) AGG. 

The court stated that this difference of treatment is not justified either. According to the BAG, the defendant has not substantially demonstrated in accordance with Sec. 10 AGG that the difference of treatment on grounds of age resulting from the enhanced vacation entitlement is justified by a legitimate aim. 

According to the BAG, the defendant’s alleged empirical principle that an increased need for vacation and a longer regeneration period can generally, i. e. across all employment groups, be assumed as a result of a decrease in the physical capacity of employees over the age of 50, does not exist in this generality. The defendant has not substantiated the specific circumstances for the assumption that all employees bound by collective agreements who have reached the age of 50, have an increased need to recover compared to other employees, regardless of the activities performed. In this respect, the blanket references of the defendant were insufficient. 

Therefore, the contested provisions are to be applied to the plaintiff - by way of an "upward adjustment" - as if he had already reached the age of 50 upon entry into force of MTV UKGM, resulting in a higher vacation entitlement.


The BAG consistently upholds its previous case law on enhanced vacation entitlement on grounds of age (BAG Apr. 12, 2016 - 9 AZR 659/14) and therefore also provides for an increased degree of legal certainty in practice. It is to be noted that a submission regarding a permissible difference of treatment on grounds of age pursuant to Sec. 10 AGG must be sufficiently substantiated.

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