Kremalis Law Firm
Overview
Two types of age discrimination are recognised in Greece: direct discrimination takes place when one person is treated less favourably than another has been, or would have been, treated in a comparable situation and 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.
However, the law permits justification of both types of age discrimination. According to art. 5 and 9(1) of the Framework Directive 2000/78/EC, “a difference of treatment which is based on age shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement and the requirement is proportionate”. Moreover, indirect discrimination is justified as well if “that provision, criterion or practice is justified by a legitimate aim and the means of achieving that aim are appropriate and necessary…” In any case an exception from the general principle can be established if within the context of national law this different treatment is justified by employment policy, labour market and vocational training objectives and the means of achieving that aim are appropriate and necessary (art. 11).
Who's covered?
Generally, it covers all types of employees and it is worth mentioning that privileges afforded to certain categories of employee do not constitute prohibited discrimination. Therefore, special protective measures for example for pregnant women or for trade unionists are valid.
What enforcement/remedies exist?
One of the most innovative aspects of the Law is that it focuses on remedies and enforcement. In article 13 of Law 3304/2005 it is stated that organisations whose aim is to safeguard the observance of equal treatment, may engage in any judicial or administrative procedure, with or without the consent of a complainant. Furthermore, according to article 14 the burden of proof will shift to the respondent when persons, who consider themselves discriminated against, establish before a court or other competent authority facts from which it may be presumed that there has been direct or indirect discrimination. This way the procedural position of the employer is favoured, while at the same time the employee’s power is eliminated.
Regarding discrimination during the employment relationship, if an employee succeeds in a claim that the discrimination he has suffered is that he is being paid less than other employees, the employer must pay the employee the difference in pay. An employer who prevents an employee from pursuing his/her legal rights can also be liable to criminal sanctions. According to the Greek case law, although Law N. 1414/84 does not impose specific civil sanctions against an employer who breaches the principle of equal treatment, the judge should seek to impose the most effective sanction in the circumstances.
Finally, referring to age discrimination when an employee is dismissed, we must point out that the primary sanction 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 in the employee's favour.
How common are claims?
We can state here that as far as discrimination on grounds of race, sex, sexual orientation, age, political opinion, religion, membership or non-membership of a trade union, marital status, pregnancy is concerned, cases of direct discrimination on the basis of sex, religion, marital status, pregnancy are diminishing before the courts, while cases of indirect discrimination are, however, increasing.
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?
Since there is no relevant case law related to age discrimination issues we can only register claims as they were 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 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 discrimination claims.
Furthermore, the Law 3304/2005 provides significant sanctions for the law-breakers. In particular, it can be imposed imprisonment of between 6 months and 3 years and a fine of between €1,000 and €5,000. In addition, art. 17 of the Law considers this infringement as a violation of Greek Labour Law and therefore it provides a fine, imposed by the Work Inspectorate (art. 16 of Law 2639/1998), ranging between €500 and €30,000.
Are there any specific exceptions in your laws?
Law 3303/2005 allows exemptions where the nature of a particular occupational activity justifies a need for different treatment, provided that the objective is legitimate and the set occupational requirements proportionate.
These exemptions can be separated by other statutes into the following:
a) 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.
b) 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.
c) 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
Generally, in there are no age limits set by law, above which employers can dismiss employees without the need to objectively justify the dismissal. In any case, the criterion of age cannot itself justify a legitimate dismissal, because it will then be considered to be illegal, since it breaches the Constitutional fundamental right of work (article 22 of the Greek Constitution), which is established for every individual irrespective of his/her age, sex and nationality. In other words, the employer cannot dismiss an over aged employee or reduce his salary or other given allowances, due to the fact that the principle of equal treatment would be violated. Notwithstanding, there is no relevant legislative framework, according to which an age limit is set, above which an employee is not allowed to work. However, what can be added here is that, nowadays, it is a common corporate practice to offer special retirement plan schemes within the scope of voluntary termination, rather than to dismiss.
Interesting cases
According to the annual report, the Ombudsman investigated complaints that had to do with the service status of employees who were treated less favorably because of their age.
The report contains the following cases of discriminatory treatment on grounds of age:
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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 adequately justified.
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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 adequately justified.
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A citizen who was 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 apposition 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 apposition.
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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. |
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