In its judgment of 18 September 2014 (BAG 6 AZR 636/13), the Bundesarbeitsgericht (Federal Labour Court) held that the graduated notice periods under § 622 Abs. 2 Satz 1 BGB do not constitute indirect age discrimination.
Graduated notice periods do not constitute age discrimination
Under § 622 Abs. 1 BGB, the basic notice period is four weeks, taking effect on the 15th or at the end of a calendar month. Pursuant to § 622 Abs. 2 Satz 1 BGB, this period is extended in several stages where the employee has been with the company for a longer period, up to a maximum of seven months to the end of a month. The claimant had been employed by the defendant as a temporary worker since July 2008. By letter dated 20 December 2011, the defendant terminated the employment relationship in compliance with the statutorily extended notice period under § 622 Abs. 2 Satz 1 Nr. 1 BGB with effect from 31 January 2012. The claimant did not challenge the validity of the dismissal itself, but argued that the staggered notice periods amounted to age discrimination, with the result that the longest notice period of seven months provided for in § 622 Abs. 2 Satz 1 Nr. 7 should apply to all employees, regardless of length of service. In support of this, she submitted that the graduated notice periods favour older employees, since long-serving employees are typically older. This therefore puts younger employees at a disadvantage.
Extension of notice periods pursues a legitimate aim
The Bundesarbeitsgericht did acknowledge that differentiating the notice period according to length of service results in indirect disadvantage to younger employees. However, the extension of the notice periods pursues the legitimate aim of providing improved protection against dismissal to long-serving and therefore loyal employees, who are naturally older. On that basis, the extension is appropriate and necessary, and age discrimination is therefore ruled out.
Frequently asked questions
Frequently asked questions
Are the graduated notice periods under § 622 Abs. 2 BGB age-discriminatory?
No. The Federal Labor Court ruled on 18 September 2014 (6 AZR 636/13) that notice periods graduated by length of service do not constitute unlawful indirect age discrimination. While younger employees are effectively disadvantaged, the provision pursues a legitimate aim.
What is the statutory basic notice period under § 622 Abs. 1 BGB?
The basic notice period is four weeks, effective either on the 15th or on the last day of a calendar month. This applies as long as the length of service does not trigger an extended notice period under § 622 Abs. 2 BGB.
How do notice periods extend with increasing length of service?
Under § 622 Abs. 2 Sentence 1 BGB, notice periods extend in stages depending on the length of service. The longest statutory notice period is seven months to the end of the month and applies to very long periods of service.
What objective justifies the extended notice periods?
The graduated scale is intended to provide enhanced protection against dismissal for long-serving and loyal employees. Since such employees are typically older, the rule indirectly favours older workers, but it is appropriate, necessary and therefore permissible.
Can younger employees demand application of the longest notice period of seven months?
No. There is no requirement to align all employees with the longest notice period of seven months regardless of length of service. The BAG has clarified that the statutory graduated scale is compatible with the prohibition of discrimination.