Raidla Lejins & Norcous
www.rln.lv
Overview
Satversme, the constitutional law of the (the "Constitutional Law"), effective as of February 15, 1922, contains a general prohibition of discrimination and provides that everyone has the right to freely choose their employment and workplace according to their abilities and qualifications. The Constitutional Law also indicates that those rights can be subject to restrictions under certain circumstances.
The Latvian Labour Law (the "Labour Law"), effective as of June 1, 2002, provides that everyone has an equal right to work, to fair, safe and healthy working conditions, as well as to fair work remuneration. The said rights shall be ensured without any direct or indirect discrimination, irrespective of a person’s race, skin colour, gender, age, disability, religious, political or other conviction, ethnic or social origin, property or marital status or other circumstances.
Both, the Labour Law and Constitutional Law permit the use of age-based distinctions when necessary as a result of a genuine occupational requirement, and also permit the use of age criteria in circumstances which would otherwise constitute direct discrimination when this can be demonstrated to be objectively necessary to achieve a legitimate and proportionate aim. Indirect age discrimination can also be justified if objectively necessary and proportionate.
In addition, the Labour Law prohibits applying sanctions to an employee or to otherwise directly or indirectly cause adverse consequences for him/her because the employee, within the scope of his/her employment relationships, exercises his/her rights in a permissible manner.
The Labour Law does not specifically indicate harassment as a type of discrimination, which is so indicated under the Council Directive 2000/43/EC. The Labour Law also provides that a person's rights shall be ensured without any discrimination, irrespective of circumstances. The Labour Law’s wording "other circumstances" is interpreted by Latvian courts in the light to include all types of discrimination.
Directives combating discrimination, Council Directive 2000/43/EC, Council Directive 2000/78/EC and Directive 2002/73/EC, are implemented in the Labour Law.
Who's covered?
The Labour Law only covers prohibition of age discrimination against employees. The Constitutional Law sets down a general principle of equality and rights on employment and in the workplace, and the possibility to restrict such rights under certain circumstances. The Constitutional Law is applicable to all people in the as all people, whether self-employed, agents, etc., are covered by the Constitutional Law.
The prohibition of age discrimination is not limited to a certain age or limited in any other ways. There are no categories of employees who are excluded from the prohibition of age discrimination.
What enforcement / remedies exist?
The Criminal Law does not qualify the age discrimination as a criminal offence.
The Labour Law provides that if the prohibition against differential treatment is violated, the employee, in addition to rights specified in the Labour Law, has the right to request compensation for damages and compensation for moral harm. In case of dispute, a court at its own discretion shall determine the compensation for moral harm.
According to the Civil Law, Section of Contract Law, effective as of March 1, 1993, every prohibited action as a result of which damages (also moral harm) have been caused, gives the offended party the right to ask for satisfaction from the guilty party, namely, the offended party can ask for compensation (not indicated in the respective law). Claims on discrimination cases can be brought in front of a court with a general jurisdiction for hearing legal claims.
In case of age discrimination an employee is entitled to directly file a claim with a court. In addition, any person can file a claim with the to evaluate the compliance of any legal provision with the Constitutional Law.
The State Labour Inspection, established in 1992, is entitled to take measures to ensure effective implementation of the state policy in the field of employment legal relationships, labour protection and technical supervision of dangerous equipment. The State Labour Inspection supervises and controls merchants, state and local government institutions, religious and public organisations, employers and their authorised persons, and any places in an undertaking that are accessible to employees in the course of their work. The State Labour Inspection is entitled to review complaints, issue warnings, instructions, apply administrative penalties or inform the prosecutor's office, state and local government institutions about violations of labour laws.
The National Human Rights Office, established in 1996, became the Ombudsman Office in 2007. The Ombudsman is working to ensure equal treatment and prevention of discrimination, amongst other things. The Ombudsman is entitled to react to such violations and file a claim with the respective court.
How common are claims?
Claims on discrimination are not very common and have started only recently. First judgements involving age discrimination were taken by the only in 2003.
In total 6 complaints regarding age discrimination were received by the Ombudsman Office in 2009, which is much less than the 37 sex discrimination complaints received.
What claims are most common and what are trickiest issues for employers?
The most common cases to be brought in front of a court are those related to gender discrimination and racial discrimination. One of the most common mistakes by employers is to set higher remuneration for the same work or offer more bonuses in a similar situation for male employees than for female employees.
Other types of discrimination cases, which may increase, are those related to age discrimination. Employers do not wish to employ people approaching the age of retirement.
Are there any specific exceptions in your laws?
Each person can be employed from the age of 15 years. The general retirement age in Latvia is the age of 62 years for both men and women.
Nevertheless, there are specific professions which are governed by separate laws and which require certain physical capacities in order to fulfil the job duties. Such professions are policemen, firemen, seamen, professional dancers, etc., and in most cases this age limit is below the general retirement age. There are also specific professions, where the age limit is above the general retirement age, e.g., the maximum age for holding office as a judge of a district or regional court shall be 65 years, but as a judge of the supreme court shall be 70 years (with a possibility to extend the term up to 5 years).
If a collective agreement or an employment contract provides for any benefits, bonuses or other conditions to be fulfilled prior to terminating the employment relationship and such conditions are in line with the respective labour laws, the employer have to fulfil the agreed conditions prior to the dismissal. The Labour Law provides that under certain circumstances upon giving a notice of termination, an employer has a duty to pay severance pay to an employee, which depends on the amount of years the employee has worked for the respective employer, i.e., the longer he/she has worked, the higher is the severance pay.
In a case where a reduction of employees is sought, preference is given to those employees who have higher performance results and higher qualifications. Should performance and qualifications not substantially differ, the preference to remain in employment shall be for employees of certain categories, among which are persons who have less than five years until reaching the retirement age.
Retirement ages
There is no mandatory retirement age in . The Labour Law does not provide an age above which employers can dismiss employees without the employer needing to objectively justify the dismissal in order to avoid a finding of unlawful age discrimination.
In addition, the employment of state civil servants is also regulated under a separate law (State Civil Service Law) and it includes an age limit of employment with the state civil service. State civil servants can be dismissed without needing to objectively justify the dismissal upon reaching the general age of retirement.
Interesting cases
Both of the below cases were filed with the by applicants in order to ensure amendments on age limits in the respective laws.
The first case to be set forward is the so called University Law case (Case No.2002-21-01, judgement passed on May 20, 2003). The Law on Institutions of Higher Education provided that the elected positions of a professor, associated professor, assistant professor and administrative position (rector, pro-rector, dean) within a higher education institution can be held until the age of 65 years. Similar provisions were included also in the Law on Scientific Activity. Three applicants who had reached the age of 65 years and could potentially hold a position of a professor applied this case to the .
The recognised that these provisions were age discriminatory and confirmed that the Law on Institutions of Higher Education and the Law on Scientific Activity were not compliant with Constitutional Law. Consequently, the respective provisions of laws were held null and void as of the date of the announcement of the judgment and the laws were amended later.
The second case is State Civil Service Law case (Case No.2003-12-01, judgement passed on December 18, 2003). In this case the applicant filed a claim with the Constitutional Court based on the fact that certain provisions of the State Civil Service Law were discriminatory in relation to the person's age, i.e., the state civil service employment relationship was to be terminated upon reaching the age of retirement determined by the state (except in cases where there is a motivated order of the head of the institution in respect of the relevant civil servant to remain in his/her position).
In this case the did not recognise the fact of discrimination with regards to age and ruled that the respective provisions were in conformity with Constitutional Law. In the State Civil Service Law case, the fact of age discrimination was not recognised because the held differences from the University Law case. The court's reasoning was that the provided age restriction is proportionate to the legitimate aim of the respective law.