The Law Offices of George Z. Georgiou
www.gzg.com.cy
Overview
The Cypriot Constitution (article 28) contains a general antidiscrimination provision which corresponds 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.
In 2004, four separate antidiscrimination laws came into force implementing the two antidiscrimination EU Directives 2000/78/EC and 2000/43/EC:
(a) Law 57(I)/2004 amending the existing Disability Law
(b) Law 58(I)/2004 on Equal Treatment in Employment and Occupation
(c) Law No. 59(I) of 2004 on Equal Treatment (Racial or Ethnic Origin) and
(d) Law No. 42(Ι)/2004 appointing the Ombudsman as the Equality Body
Law 58(I)/2004 on the Equal Treatment in Employment and Occupation Law applies to all natural and legal persons in both the private and public sectors. The sanctions that courts can impose against physical persons found to be guilty of discrimination cannot exceed €6,835.27 and/or imprisonment of up to six months. For legal persons the maximum penalty is €11,960.21.
The provisions prohibiting discrimination on the grounds of age is included in the Combating of Racial and Some Other Forms of Discrimination (Commissioner) Law 42(I) 2004, the Equal Treatment in Employment and Occupation Law 58(I) 2004 and Law 57(I)/2004 amending the existing Disability Law.
Who’s covered?
The general prohibition against discrimination laid down in the Constitution extends to all individuals, whether or not a citizen of the Republic. The scope of the antidiscrimination laws apply to both the private and the public sector and cover all fields provided in the Directives.
What enforcement/remedies exist?
Victims of discrimination have the option of submitting a complaint to the equality body (Ombudsman) or to the courts. Litigation could either be through an administrative agency with recourse to the Supreme Court to set aside such administrative act, or to the District Court or Employment Courts in accordance with the laws implementing the two Directives, or to the District Court for violation of the constitutional antidiscrimination provisions.
Victims may submit complaints either to nongovernmental organizations (NGOs) or trade unions, who may then submit complaints to the Ombudsman on their behalf, or directly to the Ombudsman, where the procedure is cost-free, simple and flexible. The national laws implement verbatim the Directives’ provisions regarding the right of organizations to engage in procedures on behalf of their members.
What claims are most common and what are trickiest issues for employers?
In 2008, 93 complaints regarding unlawful discrimination were submitted to the Equality Authority, which more than half of all complaints concerned discrimination on the grounds of sex and approximately 10 % concerned discrimination on the grounds of age.
The areas of recruitment and termination of employment are likely to be particularly difficult.
In regards to the recruitment of personnel, during interviews there are no specific restrictions or prohibitions against background checks about the prior work experience and qualifications of a potential employee. Employers are free to ask relevant questions about the educational background and professional training of the applicant. But questions relating to the timing of the education and training may give rise to potential age discrimination claims.
Are there any specific exceptions in you law?
The laws 58(I)/2004 and 57(I)/2004. implementing Directive 2000/78 allow 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 within 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. With regard to age, these provisions do not apply to the armed forces or to the extent that the fixing of an age limit is justified by the nature and the duties of the occupation.
Retirement Ages
Old-age pension is payable at the age of 65 for men and women and is not conditional on retirement from regular employment, with the exception of miners.
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. The private sector does not have a mandatory retirement age and an age can be agreed by the parties, or according to custom and practice of the organization. It should be noted, that people working beyond the retirement age do not have recourse to the employment courts.
Interesting cases
- The Cyprus Labor Institute (PEO-Pancyprian Federation of Labor) has asked from the Equality Authority to examine whether the provisions of article 4 of the Termination of Employment Law, which excludes from the right of compensation due to illegal dismissal those over the age of 65, constitute unlawful discrimination.
The above Law provides protection from illegal dismissals and employees have the right of compensation in the occasion of an unfair dismissal, independent of their age. However, by virtue of article 4 of the same Law, the employees over the age of 65 are excluded from the right of compensation in the occasion of illegal termination of their employment.
The Ombudsman judged that to set a maximum age limit in exercising the employees’ right to be compensated in the occasion of their dismissal due to their trade unionism action or due to their participation to a control committee of the safety conditions in their working environment concerns regulation which leads to a legally unacceptable effect.
The Ministry of Labor and Social Insurance supported that the age of 65 after the completion of which the employee is not granted the right to be compensated due to termination of his/her employment, was not arbitrarily set but was set on the rationalisation that this is the retirement age, and therefore, the rights of the overwhelming majority of the employees over the age of 65 are ensured with their retirement rights.
- A 38 year old man who possessed considerable experience as a flight attendant filed a complaint against the Cyprus Airways. He had submitted an application for the position of the seasonal flight attendant, which was rejected because he exceeded the age limit of 30 that was set as a requirement for the position. His accusation was upheld. Specifically, the Ombudsman judged that the maximum age limit of the age 30 for the filling of the flight attendant position constitutes direct discrimination on the grounds of age in the field of accessing work positions, and was a violation of the Equal Treatment in Occupation and Employment Law. It is noted that in the European Regulations (Join Aviation Regulations), a maximum age limit is not set out in the qualifications required for flight attendants. Also no other airline company in Cyprus requires such a condition for the employment of flight attendants. After the submission of the Report there were consultations with Cyprus Airways as to the content of the Ombudsman’s three final recommendation. Cyprus Airways agreed to the immediate elimination of the maximum age limit of the 30 for the filling of the flight attendant’s position.