This summary of age discrimination law in Bulgaria has been prepared by Boyanov & Co, the Ius Laboris member for Bulgaria: boyanov.com
The prohibition for age discrimination was introduced through the Labour Code in 2001. It was also laid down in the Protection against Discrimination Act in 2003 (“PDA”).
The PDA defines both direct and indirect discrimination.
Direct discrimination occurs when a person is treated less favourably than another person in a similar situation because of his/her age (or based on another protected feature).
Indirect discrimination occurs if, as a result of a seemingly neutral provision, criterion or practice, an individual is placed in a more disadvantageous position compared to others for reasons based on his/her age. The exception to this is if the discrimination is: (a) objectively justified in the view of a legitimate aim; and (b) the means of achieving that aim are appropriate and necessary.
Harassment based on any protected feature (including age), and instigation for discrimination are also forms of discrimination.
The PDA has a separate section named “Protection in Exercising the Right to Work”. It prohibits discrimination on protected characteristics (including age) in the fields of recruitment, working conditions, pay, performance-evaluation criteria, vocational training, qualification, career path, disciplinary measures, and most common types of unilateral dismissal. The employer is obliged to undertake effective measures. It also sets out the necessary disciplinary steps if an individual has harassed another.
There are positive discrimination provisions aimed to compensate for disadvantages suffered at work by disabled individuals, pregnant women or women on maternity leave, as well as to promote employment of the gender or ethnic group which isn’t represented by the employer.
The employer has the general obligation to present, in a visible place in its enterprise, the text of the Protection against Discrimination Act, as well as all provisions of its internal acts and of the collective labour agreement which relate to protection against discrimination. The employer is also obliged to present information to each employee who makes a discrimination claim.
All individuals are covered by anti-discrimination protection. In addition, the protection covers associations and entities when they are discriminated against in regards to their members or employees.
What enforcement/remedies exist?
The Commission for Protection against Discrimination (the “Commission”) focuses on the prevention of discrimination, protection against discrimination, and provision of level-field opportunities. The courts (civil and administrative, depending on the body that committed discrimination) also have jurisdiction over discrimination disputes.
Each person may initiate a legal proceeding before the Commission or directly before the court. While the Commission only has the authority to establish the discrimination, issue compulsory directions for cease of such behaviour, and impose a monetary penalty (up to EUR 1,000 in the general case), the court may also award claims for damages, which amount is determined on a case-by-case basis, but they are not high (in most cases up to EUR 2,000). The court cannot however, impose penalties.
The decision of the Commission is the subject of two-instance judicial review. It is possible first to initiate a proceeding before the Commission, and once discrimination is established, to initiate a proceeding for an award of damages before the court.
State fees are not due for proceedings before the Commission/courts, and the expenses for the proceedings are also covered by them.
How common are claims?
Age discrimination claims are not the most common type of discrimination claims. The number of complaints based on age discrimination (both as a separate claim and as part of multiple discrimination claims) before the Commission has varied between 26 and 60 in recent years. There is no established trend for an increase or decrease of the number of claims based on age discrimination.
What claims are most common and what are the trickiest issues for employers?
The claims vary and there are no common types, but as could be expected, the claims are mostly related to age restrictions for hiring, unequal treatment or harassment during employment, and dismissal based on age. We advise employers to legally review their policies/actions before implementation, which also includes review for anti-discrimination compliance.
Are there any specific exceptions in your law?
Different treatment based on age is justified in the following cases:
- Different treatment due to the nature of the particular occupational activities concerned or of the conditions in which they are carried out, if age constitutes a genuine and determining occupational requirement, provided that that objective is legitimate and the requirement is proportionate.
- The setting of a minimum age, professional experience, or length of service for recruitment or for granting of certain benefits related to work, provided that this is objectively justified for the achievement of a legitimate aim and the requirement is proportionate.
- The setting of a maximum age for recruitment which is based on the training requirements for the post in question or the need for a reasonable period of employment before retirement provided that this this is objectively justified for the achievement of a legitimate aim and the requirement is proportionate.
- Age (and length of service) requirements set by law for the purposes of pension social security.
- Age requirements related to measures or programs under the Employment Promotion Act.
- The setting of requirements for minimum and maximum age for access to training and education, if it is objectively justified for achievement of a legitimate aim in view of the nature of the training or the education, or of the conditions in which they are carried out, and the requirements are proportionate.
- Setting of a maximum age limit for eligibility for a loan under the Student and Doctoral-Candidate Loans Act.
There are different retirement ages for different types of employees. The most common retirement age for 2018 which applies to employees working under normal working conditions is 64 years and 1 month for men and 61 years and 2 months for women. The retirement age would increase gradually in the coming years reaching 65 years for both men and women.
The retirement age is lower for military servants, firemen, policemen, teachers, employees working under hard or dangerous working conditions, and other special categories of employees.
Retirement age itself does not entitle the employee to a pension, but there is also a requirement for certain length of service (in general cases, 38 years and 6 months for men and 35 years and 6 months for women for 2018, but it would also gradually increase during the coming years reaching 40 years for men and 37 years for women).
The employer may unilaterally terminate the employment relation with the employee when the latter becomes eligible for pension for age and social security length of service.
One of the interesting cases in the recent years involved a large telecommunication company which dismissed a large number of employees from its sales department where the dismissed employees where above 39 years of age. At the same time, the company expanded and hired predominantly young employees. The Commission found that the employer had discriminated against the employees on the basis of age, by harassing and pressing the employees to accept the termination of their contracts.
However, the first-instance administrative court annulled this decision due to the expired prescription term as the proceedings before the Commission took more than 3 years.
The decision is now on appeal and the case is now pending before the Supreme Administrative Court.