This summary of age discrimination law in Austria has been prepared by Kunz Schima Wallentin, the Ius Laboris member for Austria: www.ksw.at.
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 reflects the Equal Treatment Act, both of which came into force on 1 July 2014; 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 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, and employers have the responsibility to take steps to prevent harassment.
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, in that the 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.
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.
Trainees may not be considered as employees if their position is not on the list of ministry-approved traineeships and if they do not perform their services under the contract of their employer. So, although trainees are explicitly protected from discrimination in terms of having access to training contracts, they 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 may 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 by 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 have been increasing during the last few 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 brining age discrimination claims (see in detail below). Claims also relate to job applications, the establishment of a new employment relationship or the promotion to a new position.
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.
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 Section 61 of the Equal Treatment Act.
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; since then, however, employers need to be aware that, for example, a 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.
Recent cases have dealt with claims of discrimination at the recruitment and job promotion stages. As the compensation amounts set out in the Equal Treatment Act are only the minimum amounts, more claimants are bringing more cases forward over the last few 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).
However, 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.
collective bargaining agreements often exclude interns and volunteers, which especially affects young individuals;
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.
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 employment. While early retirement before the official defined age of retirement (in which an individual is entitled to his/her pension) is generally possible, monthly pension payments decrease as a result.
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 applicant’s claim was denied because the notice of termination was dated prior to the ratification of the Directive in Austria. If the same case were to come to court today, the termination would probably be seen as discriminatory and ruled invalid.
There have been several decisions on European and national level, with regard to the consideration of years of service of civil servants. Previously, according to the public services law (Dienstrecht) on federal and regional level, years of service accrued before an individual’s 18th birthday were not considered for civil servants. This however, constituted age discrimination and therefore violated Directive 2000/78/EC. Since then, the law as well as collective bargaining agreements have changed so that years of service accrued before the 18th birthday is now taken into account. A subsequent decision of the European Court of Justice confirmed that the new salary system is in line with EU law.
In 2016, the Austrian Supreme Court ruled that an employer's general policy of terminating all employees when they reach the retirement age for a corridor pension or an early retirement pension with a long insurance period results in a direct discrimination against the employees on the grounds of age. This cannot be objectively justified by the fact that the employees concerned are already entitled to a pension benefit. If no overall concept going beyond financial reasons and the simple reduction of older, and therefore more expensive employees who are entitled to a pension, is discernible, this cannot be regarded as an appropriate means of making socially balanced job cuts.
Age discrimination was also assessed by the European and national courts. The implementation of non-discriminating provisions in the public service has not occurred yet.