This summary of age discrimination law in Austria has been prepared by Kunz Schima Wallentin, the Ius Laboris member for Austria: www.ksw.at

Overview

Prior to ratification of Directive 2000/78/EC of 27 November 2000 there was no protection against age discrimination in Austria, except for the general protection against unfair dismissal found in Section 105 of the Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG) which simplified the burden of proof for older employees. The Directive was implemented into Austrian national law by the Equal Treatment Act (Gleichbehandlungsgesetz, GlBG). Most parts of the Directive were incorporated into the law in identical terms, except for the terms providing additional protection for ethnic minorities.

Civil servants of the federal government are protected by the Federal Equal Treatment Act (Bundes-Gleichbehandlungsgesetz, B-GlBG), which is practically identical to the Equal Treatment Act; further laws exist for civil servants of the provincial government. Agricultural workers are protected by Anti-Discrimination Acts that were enacted at the provincial level for jurisdictional reasons (Landes-Antidiskriminierungsgesetze).

The Equal Treatment Act and the Federal Equal Treatment Act came into force on 1 July 2004. The separate laws for agricultural workers became effective in the first half of 2005 and the provincial anti-discrimination laws became effective (for the most part) in the second half of 2004.

In Austria, both direct and indirect discrimination are prohibited in connection with recruitment, wages and salaries, voluntary social benefits, vocational training, promotion, conditions of employment and termination of employment. Harassment is also prohibited, as is the failure on the part of an employer to take steps to prevent harassment. Both older and younger employees are protected from age discrimination.

Unequal treatment may be justified within the terms of Section 20 of the Equal Treatment Act, which is identical to Article. 6 of the Directive: such unequal treatment must be objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and the means of achieving that aim must be appropriate and necessary.

Who's covered?

The Equal Treatment Act covers all kinds of employees, i.e. blue-collar and white-collar workers, whether they have just been hired or have been employed for longer. An employee is defined under Austrian law as one who performs services under the control of his or her employer and is in particular bound by instructions about his or her place of work, working hours and work-related activities.

Where their positions are not on the list of ministry-approved traineeships and they do not perform their services under the contract of their employer, trainees are not considered to be employees. So, although they are explicitly protected from discrimination in terms of having access to training contracts, trainees are not protected from age discrimination during the course of their work.

Self-employed people are generally not protected from discrimination (except with reference to membership to employer representative organisations or in general to the possibility to go into business for oneself). However, contractors who are similar to the self-employed in terms of having greater flexibility in determining their work conditions, but resemble true employees in terms of their economic dependency, are generally protected (arbeitnehmerähnliche Personen).

No person may be directly or indirectly discriminated against in the context of an employment relationship on the grounds of his or her ethnic origin, religion or belief, age or sexual orientation. Nor may anyone be directly or indirectly discriminated against on these grounds in the context of access to career counselling, vocational training, membership of professional associations (trade unions, Chamber of Labour, etc) or the fulfilment of criteria to become self-employed.

What enforcement/remedies exist?

An administrative fine of up to €360 can be imposed for violations of the Equal Treatment Act, and the victim of discrimination can claim damages from the employer for financial loss and - except in cases where the employee contests a discriminatory dismissal - for personal hardship. The claim for compensation is limited to €500 if the employer can prove that the damage sustained by the applicant as a result of the discrimination was only the employer's refusal to consider his or her job application. If the discrimination resulted in a lower monthly salary, the difference would be awarded as damages. If the employer unjustifiably failed to promote the employee, the employee can claim the difference between the lower and higher salaries for at least 3 months if he or she would have been promoted; and €500 if not.

Claims for personal hardship amount to at least €1.000 in cases of harassment. The employee can contest a dismissal if he or she can provide evidence that there has been a violation of the Equal Treatment Act; the employer has to prove the contrary.

How common are claims?

The Equal Treatment Act can be enforced through the ordinary courts, with special provisions regarding the burden of proof, which are in favour of the “victims”. Claims are more and more common and case law of the Austrian Supreme Court has been increasing during the last years. There have been some cases of age discrimination especially with regard to pension claims (Austria still has a different retirement age for men and women) and - following a ECJ ruling there have been recent cases of civil servants regarding age discrimination (see in detail below). Also claims are related to job applications, the establishment of a new employment relationship or the promotion to a new position.

The employee can also appeal to the Equal Treatment Commission (Gleichbehandlungskommission). This administrative authority can decide whether there has been discrimination and put in a request to the employer in writing to eliminate it. The decision is not binding, but should an employee later bring a claim, the responsible court would be obliged to deal with it and to justify any different decision according to Sec 61 of the Equal Treatment Act.

What claims are most common and what are trickiest issues for employers?

Few claims have been brought in since July 2004 concerning discriminatory dismissals, since most employees are already protected against unfair dismissal under the terms of Section 105 of the Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG). Employees can contest an unfair dismissal if it has an adverse impact on their fundamental interests, and the court will rule the dismissal invalid if the employer cannot offer sufficient objective or subjective justification.

In future, the legal provisions against age discrimination are more likely to be applied to cases involving the dismissal of a person who is excluded from the scope of Section 105 ArbVG and thus not generally protected against unfair dismissal. Amongst those excluded from this protection are senior executives with significant responsibility for staff, and managers of incorporated entities (especially Managing Directors of limited liability companies (LLC) and members of the Board of Directors of registered cooperative societies). These two groups are in fact employees to whom the provisions of the Equal Treatment Act apply. Until July 2004, such managers had no protection from dismissal whatsoever; since then, however, employers need to be aware that, for example, the 55-year-old Managing Director of an LLC who is dismissed and replaced by a 40-year-old might successfully bring an action in court against his or her dismissal on the grounds of age discrimination.

Other than that we expect most claims of discrimination to occur in areas where there is no legal protection beyond that offered in the Equal Treatment Act, which covers recruitment, monthly salary, voluntary social benefits, vocational training, promotion, conditions of employment and harassment. As stated above, the case law affects the recruitment issues and job promotions. In this area the amounts of compensation determined by the Equal Treatment Act are only minimum amounts and compensation is not limited to them and therefore these cases have become more and more popular over the last years.

Are there any specific exceptions in your laws?

Differences in treatment do not constitute discrimination on the grounds of age if they are objective, appropriate and are justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives. The means of achieving that aim must be appropriate and necessary. If any provision of a statute or a collective bargaining agreement meets these conditions of justification, it may provide for age-based differences (e.g., in benefits or payments) and place older employees or other persons in a better or worse position than others.

However, since this represents an exception from the protection otherwise offered, strict criteria apply as regards to justification and validity. For example, the minimum income set by the provisions for supplementary pension contributions (Ausgleichszulage) and for social benefit payments (Sozialhilfe) is the same for men and for women regardless of their age. There are, however, some admissible age-based limitations for military and police personnel.

There are also some other provisions which discriminate on the basis of age, for example:

Direct unequal treatment:

  • the official retirement age for women is five years lower than that for men. This difference will be slowly phased out by 2028, so that by 2033 the retirement age for both women and men will be 65.

Indirect discrimination:

  • collective bargaining agreements often exclude interns and volunteers, which especially impacts on young people;
  • the salary scales of collective bargaining agreements provide for regular pay increases on the basis of the length of service alone, so that older employees usually earn more for the same work than their younger colleagues.

Retirement ages

There is no fixed retirement age in Austria, except for civil servants and judges. The right to pension payments depends not only on one's age but also on having a certain number of years of contributing employment. While early retirement before the officially defined age of retirement is generally possible, monthly pension payments decrease as a result.

If an employee is dismissed because he or she has reached the official retirement age, the employer needs to justify the dismissal only if the employee contests it. However, once the employee is of retirement age and has enough years of contributing service to receive full pension payments, he or she will have difficulty contesting the dismissal; even if he or she can demonstrate that the dismissal impinges on fundamental interests, the employer may still prove that the dismissal is justified, either for reasons relating to the person of the employee or for business reasons.

Interesting cases

There was an interesting decision some years ago relating to a 56-year-old pilot who was dismissed on the grounds of his age alone. The court denied his claim based on Sec 105 ArbVG because his earnings were too high, so he based his claim on discrimination. This was also denied because the notice of termination was dated May 2003, prior to the ratification of the Directive in Austria. If the same case were to come to court today, the pilot's termination would probably be seen as discriminatory and ruled invalid.

Since then there have been several decisions – on European and national level – with regard to the consideration of years of service of civil servants. According to the public services law (Dienstrecht) on federal and regional level, years of service accrued before the 18th birthday were not taken into account for the classification of the civil servants. This constitutes age discrimination and therefore a violation of Directive 2000/78/EC. After these decisions the public services the law was changed so that years of service accrued before the 18th birthday are now taken into account for the classification of the civil servants. However, to avoid supplementary payments, at the same time the first classification period was extended. Age discrimination was also assessed by the European and national courts. The implementation of non-discriminating provisions respectively in the public services law has not occurred yet.

In general, it can be noted that employers show more caution, particularly in job advertisements and job interviews as well as job promotions. However, if employees succeed it might be quite expensive for the employer.