Employees whose retirement age is not far away can face bad luck if they are made redundant as a result of company bankruptcies. The Federal Labor Court ruled on Thursday in Erfurt (6 AZR 31/22) that when it comes to social selection, the proximity to retirement should be taken into account alongside other criteria.
“When weighting age, it can be taken into account at the expense of the employee that he is already receiving an (early) pension without any deductions due to age,” explained the highest German labor judge in a case from North Rhine-Westphalia.
This also applies “if the employee is close to retirement because he can receive such a deduction-free pension or the standard old-age pension at the latest within two years after the intended end of the employment relationship,” the judges explained. Only an old-age pension for severely disabled people should not be taken into account.
A woman born in 1957 had complained that the insolvency administrator of a company had given notice, among other things, because she was close to retirement. She was one of 61 of almost 400 employees who were on a list of workers to be dismissed. The defendant insolvency administrator took the view that the woman was the least socially worthy of protection in her comparison group. She would have the opportunity to draw an old-age pension for particularly long-term employees shortly after the end of the employment relationship.
In the first two court instances, the woman was still successful with her action for protection against dismissal. The federal judges declared the selection criterion of age to be ambivalent. The need for social protection increases with age due to poorer job opportunities. However, it will drop again if employees can have a replacement income in the form of a pension without deductions within two years of the end of their employment, they explained. In the case of a social selection, the parties to the company would therefore have some leeway.
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