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AGE DISCRIMINATION INTERNATIONALLY

GREECE

 

Kremalis

www.kremalis.gr

 

The Law 3304/2005 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 where an apparently neutral provision, criterion or practice puts persons having a particular age at a particular disadvantage compared with other persons.

Both direct and indirect discrimination can be justified.

Who's covered?

Employees.

What enforcement/remedies exist?

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 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 Ombudsman’s experience the most common age discrimination claims are related to recruitment and, in particular, to set age conditions as selection criteria.

Another claim in regard to senior executives involves enhanced redundancy pay given by employers in case of 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.

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

  1. The fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment, e.g. for judges, notaries, certain positions of public sector etc.
  2. 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 and for example for the armed forces and the security bodies, for firemen etc.
  3. 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 as a breach of the Constitutional fundamental right of work (Art. 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 a 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 braches of the Constitution.

Interesting cases

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

  1. A seasonal employee, 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.
  2. 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.
  3. A candidate for receiving a scholarship from the State Scholarships Foundation (I.K.Y.) was rejected due to exceeding 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.
  4. 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.
  5. Candidates for employment in the public sector were rejected due to exceeding the age limit 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.
  6. 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 be examined 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.
  7. According to Law 2594/1998 (article 83) the retirement age for diplomats is the age of 60, while for those at the rank of the Ambassador it rises to 65. This may be discrimination on the grounds of age. The Ombudsman has asked from the Ministry of Foreign Affairs to present its views, stating at the same time 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 differentiated treatment, as it is justified by the nature of the particular occupational activities, which demands 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.