Prochazka Randl Kubr
Overview
The Czech Labour Code (Act No. 262/2006 Coll.) prohibits discrimination in labour relations (i.e. all employer-employee relations), while prohibition of discrimination against job applicants during the recruitment process is stipulated in the Act on Employment (Act No. 435/2004 Coll.). However, only the Act on Employment’s provisions concerning the prohibition of discrimination implements the relevant EU Directives. The Labour Code contains general prohibition against discrimination only and further refers to the new Anti-discrimination Act. The Czech Parliament recently approved the new Anti-discrimination Act, but it was placed a veto on by the president of the Czech Republic. Presently, the Czech Parliament must outvote the president’s veto or the new Anti-discrimination Act will be disapproved. Furthermore, there is a threat of action and penalty from the European Commission. .
The new draft of Anti-discrimination Act prohibits discrimination against an individual on grounds stipulated therein. It covers, among other grounds, age discrimination as well. The law prohibits both direct and indirect discrimination, and also harassment for the most important discriminatory grounds. Harassment on the grounds of age is regarded as discrimination.
Age discrimination does not include a difference in treatment based on age where, because of the nature of the particular occupational activities concerned or the context in which they are carried out, the characteristic of age constitutes a genuine and determining occupational requirement for the employee who is to perform the occupation; the objective followed under this exemption must be legitimate and the requirement adequate.
Who's covered?
As already noted, age discrimination is generally prohibited in labour relations, which covers only employees. Although agency workers fall within the jurisdiction of labour law, the new draft of Anti-discrimination Act does not expressly prohibit age discrimination between an employer and agency workers. Unfortunately, there is also no case law available which would specify in more detail the categories of persons in addition to employees to which protection would apply.
Furthermore, the general prohibition of age discrimination is not connected with any specific age limit; it covers both old and young persons.
However, there are special acts governing the performance of state services. They provide for the termination of a state-employment relationship once the employee reaches a specific age (as noted below):
- judges (70 years),
- public prosecutors (70 years),
- professional soldiers (statutory retirement age),
- state-service employees (65 years).
What enforcement/remedies exist?
There are no criminal sanctions when an individual or company breaches the rules prohibiting age discrimination.
The new draft of Anti-discrimination Act sets out that, where rights and duties concerning equal treatment or discrimination in labour relations are infringed (breached), the concerned employee is entitled to demand desistance, rectification of the consequences and appropriate satisfaction. If an employee's dignity or esteem (reputation) at the workplace is substantially harmed, he may claim monetary compensation. The Labour Code also stipulates that disputes between an employer and an employee over entitlements ensuing from an employment relationship shall be decided by ordinary courts (there are no Employment Tribunals or other special courts or bodies).
The law currently has no maximum limit for monetary compensation. When calculating compensation, the court considers the consequences of the discrimination.
Finally according to the Work Inspection Act (Act No. 251/2005 Coll.), such discrimination can form an offence. An employer found to age-discriminate against employees in labour relations can be fined up to CZK 400,000 (EUR 16,000). Furthermore, the Act on Employment sets the fine for a legal entity breaching the obligation not to discriminate against job applicants at a maximum of CZK 1 million (EUR 41,000).
How common are claims?
Claims concerning discrimination in employment matters are quite rare in the Czech Republic.
We are aware of only a one claim made on grounds of age discrimination. The dearth in discrimination case law is explained by the fact that Czech anti-discriminatory legislation was enacted relatively recently and, moreover, employees are not generally accustomed to protecting their rights in court (including rights resulting from a breach of the ban on age discrimination). Moreover, at the present time, there does not exist special legal regulation protecting employees against discrimination.
What claims are most common and what are trickiest issues for employers?
As already mentioned, we are only aware of one case claiming age discrimination. It concerned the recruitment process at an employer, when a job applicant was not hired due to her age.
We generally do not expect blue-collar employees to sue their employers for age discrimination. They usually don't know their rights and, moreover, are afraid of losing their jobs. However, white-collar employees in executive functions, who have more legal information, know their rights better and have better access to legal counsel might potentially initiate a proceeding before the court.
Are there any specific exceptions in your laws?
Minimum wage for youth workers (i.e. employees younger than 18 years) is only 80% of the minimum wage stipulated for other employees. On the other hand, youth employees have more protections than older employees; they may not perform certain hard labour jobs or enter into some special agreements (e.g. indemnity agreement). Minimum wage for workers from 18 to 21 in their first employment is 90% for the first six month of their employment.
Further, the relevant law governs the different retirement ages for men (currently 63 years) and women (currently 59 years, less according to the number of children). The retirement ages for men and women will grow and will be unified at 65 years by 2030.
Certain categories of employees (state-service employees) are governed by special laws.
Retirement ages
There is no retirement age - an employer may not force an employee to retire when he/she reaches a specific age (e.g. an official age enabling employees to draw pension benefits, please see above). Exceptions to this for special categories of state employees are stipulated in special acts (please see retirement ages mentioned above).
Retired employees who draw a pension may also concurrently conclude an employment relationship or be self-employed provided that several conditions, such as employment for definite period, are met.
Nevertheless, an employer may dismiss an (older) employee if his/her performance is worse than the performance of other (younger) employees doing the same work; the dismissal must be objectively justified (i.e. the reason of such dismissal must be poor work performance, not the fact that the employee is old).
Interesting cases
As already mentioned above, we are aware only of one age discrimination case. In this case a job applicant was refused employment on age grounds (she was 50 years old). The job applicant lost the case because failed to prove that her prospective employer had said exactly: "the job applicant is too old for this job" (although Czech law requires a reverse burden of proof in discrimination claims, the claimant is initially obliged to prove that the declared fact did occur).