This summary of age discrimination law in Cyprus has been prepared by George Z. Georgiou & Associates LLC, the Ius Laboris member for Cyprus: www.gzg.com.cy
The Cypriot Constitution (Article 28) contains a general anti-discrimination provision which is in accordance to a number of International Conventions that the Republic of Cyprus has ratified. However age, disability and sexual orientation are not covered by the Constitution.
Law 58(I)/2004 on the Equal Treatment in Employment and Occupation Law (the “Law”) harmonises Directive 2000/78/EC and governs the right to equal treatment in employment. This Law sets out the framework against discrimination on grounds of race or ethnic origin, religion or beliefs, sexual orientation and age in the field of employment and occupation.
The basic aim of this Law is to promote the principle of non-discrimination (either direct or indirect) on the grounds of age (amongst other forms of discrimination) in employment, and to promote and enforce the principle of equal treatment.
The Law covers all natural and legal persons of the public and private sector, including public authorities, local authorities and organisations of public or private law concerning:
- terms of access to employment, self-employment and work including selection criteria and terms of recruitment, in all sectors of activity and on all levels of professional hierarchy, including promotions;
- access to all types and levels of vocational orientation, professional training, education and professional re-orientation, including the acquisition of practical professional experience;
- working conditions and terms of employment, including terms for dismissals and remuneration; and
- the membership and participation to employees or employers organisations or any organisation the members of which exercise a specific profession including the advantages which are given by such organisations.
What enforcement/remedies exist?
With the exception of the Supreme Court which has jurisdiction over administrative actions, persons who claim that they have suffered discrimination under the Law have the option of submitting a complaint to the Equality Authority of the Office of the Commissioner for Administration (Ombudsman), which has relevant jurisdiction to examine the complaint under the Combating of Racial and Other Forms of Discrimination (Ombudsman) Law 42(I) 2004, or to the courts. Litigation could be initiated either in the Labour Dispute Court or the District Court. The Labour Dispute Court can rule for fair and reasonable compensation, which covers at least the total of the positive damage suffered by the victim plus legal interest. The District Court rules the higher of the following two (a) fair and reasonable compensation or (b) the total of the positive damage suffered by the victim plus legal interest.
Trade unions, other organisations or legal persons which have a legal interest to ensure the adherence to the provisions of the Law can, with the approval of the complainant, submit complaints to the Ombudsman on the complainant’s behalf or in support of the complainant. This procedure is cost-free, simple and flexible. Therefore the Law implements verbatim the Directive 200/78/EC provisions regarding the right of organisations to engage in procedures on behalf of their members.
The Law provides protection for the person who lodges a complaint or is involved in the proceedings aiming to implement the principle of equal treatment, by prohibiting any unfavourable treatment or consequence against that person.
There are also criminal sanction provisions against anyone who discriminates under the Law. Physical persons found to be guilty of discrimination may be ordered to pay a fine that cannot exceed €6,834 and/or imprisonment of up to six months or both. For legal persons the maximum penalty is €11,960. If gross negligence is the reason for the offence, the fine cannot exceed €3,417. For legal persons the maximum penalty is €6,834.
What claims are most common and what are trickiest issues for employers?
In 2013, 88 complaints regarding unlawful discrimination were submitted to the Equality Authority. More than half of all complaints concerned discrimination on the grounds of sex and approximately 4 of these concerned discrimination on the grounds of age.
The trickiest areas for employers are the stage of recruitment and termination of employment. In regards to the recruitment of personnel, whilst there are no specific restrictions or prohibitions against background checks in relation to the prior work experience and qualifications of a potential employee, questions relating to the timing of the education and training of an applicant may give rise to a potential age discrimination claim.
Are there any specific exceptions in your law?
The Law allows for differential treatment based on the grounds of racial or ethnic origin, religion or belief, age, disability and sexual orientation when the nature of the particular occupational activities or the context in which these are carried out is such that a specific characteristic constitutes a substantial and determining employment precondition, provided that the aim is legitimate and the requirement proportionate. In connection specifically to age discrimination, Article 8 (1) of the Law provides that differential treatment on the grounds of age does not constitute discrimination if (a) it is objectively and reasonably justified by a legitimate object, in particular with regard to policy in the field of employment, labour market and vocational training; and (b) the means for the achievement of this object are appropriate and necessary. This “objective justification” test should always be applied to minimise the risk of unfair treatment or person of certain age.
Article 8(2) of the Law sets out some specific examples of when differential treatment on grounds of age is allowed. These are:
- the establishment of special conditions for the access in employment and vocational training, for employment and work, including dismissal and remuneration limits, for young people, the elderly and employees with dependent persons, in order to favour their professional integration or secure their protection;
- the establishment of minimum age, professional experience or seniority limits in employment or in some benefits connected to employment;
- the establishment of a maximum age limit for recruitment, based on the experience requested for the job or the need of a reasonable period of employment before retirement
- the armed forces to the extent that the fixing of an age limit is justified by the nature and the duties of the occupation
Moreover, the determination of age for the purposes of retirement or disability allowances offered by professional systems of social insurance, including the establishment of a different age limit for employees or groups or categories of employees and the use of age criteria in the actuarial calculations does not constitute discrimination.
With the exception of miners, old-age pension is payable at the age of 65 for men and women and is not conditional on retirement from regular employment. Under certain conditions a person can qualify for early retirement pension at the age of 63.
Those over the age of 65 are no longer required to make contributions to the social insurance system, unless they have not fulfilled the requirements for an old-age pension. In this case, the person must continue to make contributions until the requirements are met or the person turns 68 years old. No contributions are payable after the age of 68. Under certain conditions, if an insured person reaches the age of 68 and has not fulfilled the requirements for an old age pension, he is entitled to an old age lump–sum payment.
The private sector does not have a mandatory retirement age and an age can be agreed by the parties, or be according to custom and practice of the employer. It should be noted that people working beyond the retirement age do not have recourse to the employment courts.
On 1st January 2013, the Social Insurance Law was amended and now provides for an actuarial reduction of the old–age pension in cases where the insured person, who satisfied the conditions for old-age pension at the age of 63, chooses early retirement. The reduction is calculated based on the actual age the insured person chooses to retire.
Nicoletta Charalambidou vs The Republic of Cyprus, the Finance Minister and the Attorney General Case No. 1695/2009
In a recent decision, the Supreme Court of Cyprus elaborated on the following questions asked by the applicant:
Whether the decisions of the Equality Authority issued under Law were binding on public administration; and
Whether Article 27(1) of the Pensions Law N. 97(I)/97 violates the Law for introducing age discrimination and whether it ought to be amended.
The applicant was a former public servant who had opted to retire before reaching the age of 45 and who was denied part of the retirement benefits available to other retiring public servants based on Article 27(1) of the Pensions Law. 97(I)/1997 which provides for fewer retirement benefits for public servants retiring before the age of 45. The applicant then applied to the Supreme Court under Article 146 of the Constitution, seeking to annul the 2009 decision of the Ministry of Finance.
In 2008 the Equality Authority had ruled that the said legislative provision amounted to age discrimination prohibited by the Law and had proposed its amendment. In its decision the Equality Authority stressed that the implementation of the age limit of 45 was not appropriate and necessary for the achievement of the set aim and thus it cannot be justified under Article 8(1) of the Law.
The Attorney General, to whom the Ministry of Finance had applied for his opinion, did not share the Equality Authority’s position. Relying on the opinion of the Attorney General, the Ministry of Finance informed the applicant that that the relevant provisions of Law 97(I)/1997 did not conflict with the equality acquis or Cypriot law and therefore did not need to be amended.
In relation to the first question, Law 42(I)/2004 which appoints the Ombudsman as the Equality Authority provides in Article 39 that the Equality Authority must inform the Attorney General regarding legislative changes deemed necessary in order to comply with the equality acquis, following which the Attorney General must inform the Council of Ministers regarding measures to be taken. The Supreme Court concluded that the validity of the opinion of the Attorney General is thus subject to judicial review. It added that Article 39 of Law N. 42(I)/2004 can only be interpreted so as to mean that the Attorney General must inform the executive regarding changes in the legislation deemed necessary by the Equality Authority because the law contains unlawful discrimination. The Court stated that the wording in Article 39, “measures that can be taken” can only mean measures based on the recommendations of the Equality Authority.
The Court further noted that the Law gives exclusive jurisdiction to the Equality Authority to examine discrimination complaints and therefore any decision of the Equality Authority can be reviewed by a body that is hierarchically higher than the Equality Authority but not by the Attorney General, whose mandate is restricted to advising the Minister or Ministers about measures to be taken on the basis of the Equality Authority’s recommendations. In the present case, the public administration rejected the applicant’s claim relying on the opinion of the Attorney General, which was based on an incorrect interpretation of the law and ignored the recommendation of the Equality Authority; this procedure was, according to the Supreme Court, wrongful and in breach of Article 39 of Law 42(I)/2004.
Based on the reasons above, the Court ruled that the decision in regards to the applicant’s retirement package was wrongful and ought to be set aside.
Avgoustina Hadjiavraam νs Morfou Cooperative Credit Society Case No. 258/05
In this case, the Plaintiff was excluded on the grounds of age by the Respondents’ clerical staff recruitment procedure, in violation of the Law. In the said recruitment procedure an age limit was imposed, which was the 26th year for lyceum graduates and the 31st year for university graduates. The Plaintiff alleged that whilst she fulfilled all qualifications for the said position the Respondents rejected her application on the grounds that the she was above the age limit which was a prerequisite for recruitment.
Based on the evidence presented to the Court, the Respondents failed to prove that the Plaintiff had not been treated unfavourably on grounds of age. The Labour Dispute Court ruled that the Plaintiff had been subjected to direct discrimination on grounds of age in violation of the Law.