The plaintiff employee was a shift worker falling within the scope of application of a CBA which granted shift workers additional days off to compensate for the stress caused by shift work. The regulation contained age groups, whereas employees younger than 30 did not receive any additional days off and employees over 50 received the maximum of 12 additional days off per calendar year. Based on these age groups, the plaintiff employee was granted 6 additional days off per calendar year. He claimed that he was entitled to a total of 12 additional days off due to the regulation in the CBA being age-discriminating.
The Federal Labour Court ruled in favour of the employee. Pursuant to the German General Equal Treatment Act (AGG), employees may not be discriminated against based on a variety of criteria, including their age. In the case before the court, the plaintiff employee received less additional days off than other employees and this different treatment was based solely on his age. Under the AGG, treating employees differently based on age can be permissible if there is sufficient justification, for example the need to protect older employees at the workplace. However, in this case, the Federal Labour Court ruled that the age discrimination due to the regulation in the CBA was not justified. The maximum amount of 12 additional days off per year was already granted to shift workers from the age of 50 onwards. The Court found that, if the purpose of the regulation had been to protect older employees, the additional days off would have had to keep increasing also beyond the age of 50. Other possible justifications were not apparent and not claimed by the employer.
As a consequence of the unjustified age discrimination, the Federal Labour Court ruled that the employer had to grant the plaintiff employee the highest number of additional days off as provided in the CBA, i.e. 12 additional days per calendar year. As the Court established in previous rulings, unjustified age discrimination can only be abolished by giving the most favourable treatment provided by the regulation in question to all employees falling within the scope of application. A “downward” adjustment, e.g. to the average amount of additional days off provided by the CBA, is not an option. Therefore, it is likely that more shift workers within the scope of application of the CBA claimed additional days off based on the ruling of the Court.