Dismissals in small companies can be age-discriminatory BAG 23.07.2015 - 6 AZR 457/14

If age plays a role in the criteria for which employees are to be dismissed, this constitutes age discrimination in accordance with Section 7 AGG. A dismissal in a small company, in which the Dismissal Protection Act does not apply, can also be age-discriminatory and therefore invalid due to a breach of Section 7 AGG.

The plaintiff is 75 years old and had been employed as a medical assistant in a group practice since 1991. The notice of termination was issued on May 24, 2013 with effect from December 31, 2013, stating in the letter, among other things, that the plaintiff was "now eligible for retirement". At that time, there were three other employees besides the plaintiff who were not terminated. The termination was justified with a restructuring of the practice, mainly of the laboratory area in which the plaintiff mainly worked.

In her lawsuit, the former medical assistant now demanded compensation because she had been discriminated against due to her age when she was dismissed. The defendant justified its behavior by stating that the letter was only intended to be formulated in a friendly manner. The reasons for the dismissal were the elimination of 70-80% of the laboratory activities. In addition, the plaintiff was less qualified than other employees.

After the claim was dismissed by the first two instances, the Federal Labor Court ruled in favor of the plaintiff. The court considered the dismissal to be discriminatory on the grounds of age in accordance with Section 7 (1) AGG. The case was referred back to the Regional Labor Court to determine whether there was a claim for compensation and, if so, in what amount.

The Dismissal Protection Act does not apply to small businesses with fewer than 10 employees. A dismissal in a small company therefore does not require a reason for dismissal based on personal, behavioral or operational grounds. As a rule, the employer can dismiss without a "proper" reason for dismissal. The dismissal is only subject to a general proportionality test. However, it should be noted that the special protection against dismissal for severely disabled persons, pregnant women or employees on parental leave also applies to small businesses and that such dismissal is only possible with the approval of the competent authority. In companies with more than 10 employees, only dismissals for personal, operational or behavioral reasons are possible. These grounds for dismissal are subject to significantly higher requirements.

Date: 23. Jul 2015