The long awaited age discrimination law is set to be introduced in the UK on Sunday 1st October 2006. The originating legislation as is often the case in employment law, came from Europe in the form of a Directive.
To some extent, and on a governmental level, age discrimination law has been in effect for a while. The only problem was that governments didn't always like to recognise that, and those who suffered from age discrimination did not know of the legal remedies.
The EC Equal Treatment Framework Directive adopted in December 2000 (No.2000/78) on which our age legislation is based, gave EU countries 3 years to outlaw discrimination, the exception being disability and age discrimination, where 6 years was allowed, until December 2006. By then governments throughout Europe must introduce domestic legislation outlawing discrimination based on age.
In the intervening period however, governments were only allowed to introduce legislation in keeping with the Equality Directive. There was not in effect a 6 year period in which governments were free to introduce new legislation discriminating against workers based on their age(after the case of Inter-Environnement Wallonie ASBL v Region Wallonie).
This principal was clearly decided by the European Court of Justice after a German worker objected to a discriminatory paragraph in a law known as TzBfG adopted in 2003 (an abbreviation of 'Telzeit Befristet Gesetz').
The law stipulated that fixed term contracts can only be made if they can be 'objectively' justified. This is to avoid the injustice seen for example in the UK over many years, of workers having their fixed term contracts renewed on a yearly basis in order to avoid giving them employments rights such as holidays (See below for the plight of 'self employed' English teachers in Germany).
In the case of Mangold v Helm a 52 year old worker in a claim for unfair dismissal objected to an exemption to the above TzBfG (Para 14/3), whereby workers over the age of 52 would fall outside of the protection given regarding fixed term contracts. This exemption, allowing anyone over the age of 52 to be given an indefinite string of fixed contracts was justified by the government, in that the exemption was designed to make older workers more attractive to employers, who would otherwise only hire younger workers.
The Munich Labour Court decided that the age discrimination that the worker had suffered accorded with the domestic law. The court then referred the matter to the ECJ for a ruling on whether the German law was in compliance with European law, or whether it needed to be changed. In its ruling, the ECJ did not accept that discriminating against workers on the grounds of age was legal, whatever the ostensible grounds for so doing.
The ECJ stated that, 'The principle of non-discrimination on the ground of age must be regarded as a general principle of Community law'.
In accordance with this ECJ ruling, the High Court has in September 2006 decided in favour of the government and against Unison over the so called "85 year rule". According to this, if the sum of a person's age and the years that person has worked for the local government equal 85, then that person would be able to retire on a full pension.
The '85 year' scheme was according to the judge discriminatory on the basis of age, as a younger person would have less or no chance of taking advantage of the arrangement. Unison has declared that it will fight this judgement, but it remains to be seen, on what legal basis it can do this.
The TzBfG excuse for discriminating against workers seems rather hollow, in that the state sponsored discrimination was supposedly for the workers own good, yet in a similar vein it seems that it is also 'objectively justified' in Germany for English teachers employed by the state in German further education establishments to be indefinitely placed on fixed-term contracts describing them as 'self-employed'. For English teachers employment is not any easier to find by being discriminated against in this fashion. This means that such teachers, usually on a low salary to start with, lose the right to any benefits that German workers normally enjoy, such as paid holidays and having their medical insurance paid. On a self-employed basis, such insurance is expensive, and English teachers who develop medical problems in Germany are often not insured. When uninsured teachers become ill they return to the UK for treatment if at all possible. This point alone is reason enough for our government to intervene, to help improve English teachers terms and conditions over there. At the moment, the British taxpayer is in effect giving the German government a subsidy in kind, in providing medical help to British teachers working in Germany.
English Teachers in Germany also have to deal with matters such as taxation without the benefit of advice or help in so doing (unlike in the UK, there is no German equivalent of the 'plain English' campaign. Receiving letters from authorities who write in 'Amtsdeutsch' (complicated civil service/legal German) means that without an accountant, which further reduces a limited income, then the teacher is going to have to pay a full tax rate without the benefit of tax concessions, and be also liable to fall foul of rules they don't know about.
WorkRep would be interested to hear from any specialist in German employment law who is able to explain whether any attempt to justify such discrimination has been made, whether this is symptomatic of a wider problem, and whether any legal challenges to this abuse of fixed contracts and self employed status have been mounted.
© Workrep 29 / 09 / 2006