Additional leave for older employees. BAG 10/21/2014 - 9 AZR 956/12

The defendant employer, which operates a shoe factory, grants employees aged 58 and over additional leave of 2 days. A production assistant born in 1960 claimed this additional leave of 2 days, arguing that this practice was discriminatory against younger employees. The age limit was arbitrary. She therefore sued for a declaration that she was entitled to the aforementioned 36 days of annual leave instead of 34 days.

As in all previous instances, the action brought before the Federal Labor Court was unsuccessful. The employer has a margin of appreciation when it comes to the question of how many additional vacation days it grants and where it draws the age limit. In the opinion of the defendant employer, employees require longer recovery and regeneration periods than younger employees for the physically tiring, heavy work involved in the manufacture of shoes. The scope of assessment was not exceeded either with regard to the age limit or with regard to the number of additional vacation days. There is no violation of the prohibition of discrimination against younger employees.

Company agreements, collective agreements and employment contract provisions can stipulate that employees who reach a certain age receive a few days of additional leave.