German employers may now grant additional holiday to older employees if they believe it is in the interests of their health. The decision about whether to allow additional leave is entirely at the discretion of the employer and should not be seen as unequal treatment provided the employer can justify their decision.
In a recent ruling the German Federal Labour Court judged that a shoe manufacturer was not acting unfairly by allowing employees over the age of 58 an additional two days leave per year. As the work was physically tiring, the Court found that the employer was acting within his ‘right of evaluation’ in deciding to allow extra time off for this group of employees.
The key element of this ruling is the employer’s ‘right of evaluation’. Should an employer fail to provide strong grounds for their decision to award additional leave, they risk claims of unfair treatment which could result in them having to provide similar leave arrangements for all their employees.
- Decision of Federal Labour Court dated 21 October 2014, Az.: 9 AZR 956/12
- Press release of the Federal Labour Court
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