Since 2006, when the General Equal Treatment Act came into force in Germany, most decisions about discrimination have dealt with alleged discrimination based on age. Is this surprising? Probably not. According to the Federal Anti-Discrimination Agency in Germany, every fifth German claims to have already experienced discrimination at work based on age.

However, the companies’ attempts to actively promote the older employees might give rise to employee claims as well. The Federal Labor Court in Germany has dealt with reverse discrimination claims on multiple occasions. This time, it also had to decide on the question: Is it lawful to grant older employees more holidays than younger ones? Or does that discriminate young employees?

Seven employees in a German shoe factory claimed to be discriminated because of their age. They were granted 34 days of leave in their employment contract. At the age of 58 or above, the employer granted two more days of vacation. All of the claimants were between the ages 45 and 56 and requesting 36 instead of 34 holidays. The employer, however, rejected such claim by arguing that his “duty to care” required him to grant older employees more days of leave in order to ensure their continued capability to work.

The German Federal Labor Court ruled that granting more holidays to older employees would “not necessarily” be age discrimination (9 AZR 956/12) and  asserted two additional days of leave would not constitute a necessary protection for the respective claimants. An employee at the age of 58 or above would have a reduced physical resilience and would need more rest time and recovery than a younger colleague. The court also took into consideration the fact that work at a shoe factory would be physically demanding. The Court rejected all claims.

However, this recent decision should be applied with caution.

Back in 2012, the Federal Labor Court decided that a collective agreement which distinguished the number of days of leave depending on age was a violation of the General Equal Treatment Act in Germany. The collective agreement granted more holidays for older employees. The number of days was based on the employee’s age. Employees 29 years old and younger were entitled to 26 days, and at the age of 30 and above, they were entitled to 29 days. At the age of 40 and older, employees were entitled to 30 days of leave. The Court ruled that this was a discrimination of the younger employees.

What are the consequences for employers?

The court indicated that the legitimacy of such additional benefits for the elderly depends on the circumstances of the individual case. To avoid the allegation of a discrimination based on age, it is up to the employer to prove that more holidays for older employees are a result of “a necessary and appropriate protection.” It goes without saying that physically demanding work in a factory and a typical white collar job require for different legal treatment.

The recent decision by the Federal Labor Court should not be interpreted to mean that employers should take the initiative to increase the vacation entitlement of older employers and allocate vacation dependent on the respective employees’ age. In fact, to avoid the risk of reverse discrimination claims, it seems wiser not to differentiate at all.