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AGE DISCRIMINATION INTERNATIONALLY

GREECE

 

Kremalis

www.kremalis.gr

 

 

The Law 3304/2005, which implemented the Directions 2000/43/EC and 2000/78/EC into the Greek legal order, prohibits both direct and indirect discrimination (“the Law”). Direct discrimination occurs when one person is treated less favourably than another has been, or would have been, treated in a comparable situation. Indirect discrimination occurs when an apparently neutral provision, criterion or practice would put persons at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Both direct and indirect discrimination can be justified under specific circumstances.

Who's covered?

Employees in the private and public sector in reference to the conditions for access to employment, to self-employment and to occupation,  the access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, the employment and working conditions, including dismissals and pay,  the membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations, the social protection, including social security and healthcare, the social benefits, the education and the access to and supply of goods and services which are available to the public, including housing.

What enforcement/remedies exist?

The employee-victim of age discrimination may appeal before the Civil Courts, asking for remuneration from the employer due to the damage caused to him/her. At the same time, an employee that is occupied under the public sector may also refer to the administrative authorities under provided legal remedies asking for the redress or the prevent of the damage caused.

As in the UK, there is a reversal of the burden of proof. This means that when an employee believes that they have been discriminated against and is able to show facts from which discrimination could be inferred, the burden of proof will shift to the employer who must prove that discrimination did not occur.

An employer who prevents an employee from pursuing an age discrimination claim can also be liable to criminal sanctions.

Age discrimination law in Greece focuses on remedy and enforcement. The primary remedy in cases involving dismissal is that the dismissal will be invalidated, as null and void, and the employer will have to pay any outstanding wages to the employee from the time of his/her dismissal until the time of the judgment.

How common are claims?

Cases of age discrimination are appearing more and more frequently before the courts.

What claims are most common and what are trickiest issues for employers?

Claims can be brought in the courts, but most claims will be brought in front of the Greek Ombudsman. The Ombudsman mediates between citizens and the state in order to settle claims. According to the Greek Ombudsman’s experience the most common age discrimination claims are related to recruitment and, in particular, to set age conditions as selection criteria mostly to the public sector.

Another claim in regard to senior executives involves enhanced redundancy pay given by employers in cases regarding redundancies. In such cases the employers should include bonuses, benefits for seniority and allowances for experience and productivity in the compensation, otherwise it could lead to age discrimination claims.

Those found guilty of age discrimination can be imprisoned for between 6 months and 3 years and/or fined between €1,000 and €5,000.

Are there any specific exceptions in your laws?

The Law allows an exception from the prohibition of age discrimination if the nature of a particular occupational activity justifies a need for different treatment, provided that the objective is legitimate and the occupational requirements are proportionate. In particular, the L. 3304/2005 provides such an exception in case this treatment is provided by Law in order to serve the objectives of the occupational policy, the labour market and the vocational training, as long as the means for achieving this are appropriate and necessary.  

These exceptions can be separated by other statutes into the following:

1.     The fixing of special conditions regarding the access to employment and vocational training – including the terms for dismissal and pay - for the young, the elderly and employees who support other people, in order for their professional access to be encouraged or their protection to be ensured. 

2.     The fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment.

3.     The fixing of a maximum age for recruitment, which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement, for example for the armed forces, the security bodies, firemen etc.

4.     The fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, provided this does not result in discrimination on the grounds of sex.

Retirement ages

In Greece, there is no set retirement age above which employers can dismiss employees without the need to objectively justify the dismissal. By itself, age cannot itself justify a legitimate dismissal because it will then be considered to be a breach of the Constitutional fundamental right of work (Article. 22 of the Greek Constitution). This means that an employer cannot dismiss an older employee or reduce his salary simply because of age. Retirement is essentially unlawful.

Retirement is therefore much more of a voluntary decision in Greece. It is common corporate practice to offer a negotiated retirement package with employees voluntarily leaving employment, rather than to dismiss and risk both age discrimination claims and breaches of the Constitution.

This does not apply for retirement ages in the public sector which right now and according to the years of insurance and the exact time that this is completed, range from 60 – 65 years old, both for males and females, with some exceptions in cases of employees that are parents of minors or disabled.

Interesting cases

The recent annual reports of the Ombudsman contain the following cases of discriminatory treatment on grounds of age:

1.     Within 2014 the Greek Ombudsman has been notified by the Ministry of Labour of an announcement – an invitation of the Hellenic Chamber of Shipping (called in Greek NEE) for transfer of administrators, which set a maximum age limit of 40 years as an additionally required qualification for the participation of candidates in the selection process. The Ombudsman highlighted to NEE that discrimination against individuals based on their age in the workplace and generally in relation to occupation, which includes the terms of service and professional development as well, is prohibited by Law. It was also stressed out that any discrimination can be justified only when specific, strict conditions are met and only if the introduction of a maximum age limit is accompanied by these specific reasons. More specifically the Ombudsman reported that the introduction of an age limit for transferring employees cannot be legally justified merely by invoking that this (without any other justification) will serve the operational needs of the authority or that this vaguely will add estimated benefit for the efficiency and adaptability of employees to be transferred. Indeed, given the generally lengthening of retirement age in the broader public sector, and the fact that those to be transferred are civil servants and aggregate the length of their service in the time needed for their retirement, the invocation of the lapse of fifteen years as requirement for retirement cannot be considered sufficient reason to justify different treatment on grounds of age. After this “ex officio” intervention of the Ombudsman, the NEE withdrew the controversial announcement, suspended the proceedings and issued a new announcement that this time had no age restrictions or similar limitations. *To be noted that in many cases in the recent past a “plafond” of 35 years old has been set for entering positions in the public sector. The latter was strongly criticised by the Greek Ombudsman, since no or no adequate justification lied upon it and is undergoing changes.

2.     In a similar case, the application of an employee of the public sector who wanted to be transferred to a higher level was rejected due to the fact they exceeded the set age limit of 35 years old; the Ombudsman noted that this was not duly justified. Moreover, it stressed that even in a case where such an age limit seems to be necessary and always under specific justification provided, this could only be set for a new entrant to the public sector servants and not those who are entitled to be upgraded, given that they have uninterrupted employment and meet the rest of the requirements set for this (experience, seniority, allowances). A different treatment would be in contradiction with the provisions encouraging lifelong learning and continuing education and training of public servants in order to be upgraded.

3.     In a further case, an age limit of 24 years was set in the enrollment of pupils in the EPAL Sivitanideios School, with the only exception being the Guidance Group Maritime Professions, Department Masters and Engineering. The upper age limit was set by a ministerial decision of the Deputy Minister of Education, which, due to the candidate students’ reactions and  that of the teachers’ trade union (called OLME), was not in the end sent for publication to the Government Gazette. The grounds for this age limit as supported by the Ministry was that this was set in order to avoid the promiscuity between juvenile and adult learners. This was not considered to be sufficiently reasoned, and finally the decision was revoked.

4.     A seasonal employee and candidate for employment in the Acropolis Museum filed a complaint because he was rejected due to exceeding the age limit (45 years old) set in the person specification. The Ombudsman noted that a deviation from the general prohibition of the setting down of an age limit is permitted only if it is justified.

5.     A candidate for employment in the Organisation for Mediation and Arbitration was rejected due to not reaching the minimum age limit set in the person specification (35 years old). The Ombudsman noted that a deviation from the general prohibition of the setting down of an age limit is permitted only if it is justified.

6.     A candidate was rejected from receiving a scholarship from the State Scholarships Foundation (I.K.Y.) due to the fact they exceeded the maximum age limit set in the person specification (28 years old). The Ombudsman noted that a deviation from the general prohibition of the setting down of an age limit is permitted only if it is justified.

7.     A trainee lawyer filed a complaint because his claim to register at Xanthi lawyers’ bar had been rejected due to age limits as laid down in the Code of Attorneys at Law. The Ombudsman addressed to the above mentioned lawyers’ bar and noted that since Law N 3304/2005 took effect the aforementioned provision is considered to be abolished when the set age limit is not justified.

8.     A citizen who was a mother of more than three children (a group which is specially protected under the provisions of Law 2643/1998) raised a claim before the Greek Ombudsman because the Ministry of Justice refused to accept her obligatory appointment in a certain position due to the exceeding of the age limit set in the proclamation. More precisely, a secondary committee had to re-examine the case. The Greek Ombudsman suggested that it should examine whether this age limit is specially justified, meaning that it constitutes a genuine and determining occupational requirement by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out. Due to this intervention the committee decided that the age limit is not in compliance with the criterions of the law and certified the appointment.

9.     According to Law 2594/1998 (Article 83) the retirement age for diplomats is the age of 60, rising to 65 for those at the rank of the Ambassador. This may be discriminatory on the grounds of age. The Ombudsman has asked for the Ministry of Foreign Affairs to present its views, stating that, according to the clauses of the Directives which Greece has incorporated, every state can claim justification on the grounds of general social or pension policy. The department alleged that the clause does not constitute differential treatment, as it is justified by the nature of the particular occupational activities, which demand the faster promotion of younger persons with special qualifications to the ambassadorial degree. The Greek Ombudsman underlined that this measure is not referring to the promotion of certain diplomats, but to the obligatory retirement of those who are not promoted. This practice may establish an indirect discrimination. The Ministry did not accept the opinion of the Greek Ombudsman. However, it is important to note that the new Code does not contain any distinction as far as the retirement age is concerned, perhaps showing that the Ministry complied with the Greek Ombudsman’s opinion after all. 

10.  Last but not least, it is worthwhile to mention that in the recent Competition for the recruitment of fifty four (54) Judges in the Country Courts of the Country, as announced by the Ministry of Justice, Transparency and Human Rights in 2014, those who had the age qualifications specified in the Courts Organisation Code and Status of Judges (as amended by Law. 4055/2012 A51) were for the first time allowed to participate in the Contest. Practically this meant that the set age limit was extended and for the first time candidates who have completed the 25th and not exceeded the 40th years of age at December 31 2014 were allowed to participate to the Contest. The difference in relation to the past was that until then, those who were over 35 could not participate and were excluded under the applicable Ministerial Decision at the time from the procedure. It is obvious that this is a significant and substantial change in the perception of the whole matter from the Greek legislator, who by re-setting the particular age limit under a more reasonable basis, gives the opportunity to more candidates to participate to such competitions and supports their professional prospects by entering to judiciary.