Greece – agediscrimination.info

literally the Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. In particular, two types of age discrimination are recognised: a) the direct discrimination that can take place when one person is treated less favourably than another is, has been or would be treated in a comparable situation and b) the indirect discrimination which occurs where an apparent neutral provision, criterion or practice can put 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), it stipulates that “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 differentiated 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?

As far as age discrimination during recruitment is concerned, the primary civil sanction provided by Greek legislation is that the employer may be liable to employ the job applicant and pay him/her the salary to which he/she would have been entitled. Under Article 12 of Law 1414/1984, administrative sanctions may be imposed (primarily fines by the competent Labor Inspectorate). Law 3304/2005 also provides for administrative sanctions.

Regarding the discrimination during the employment relationship, if an employee succeeds in a claim for equal pay, the employer must pay the employee the appropriate 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 the invalidity of the dismissal. Consequently, the employer is obliged 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. It is worth mentioning that recently cases, concerning age discrimination, appear more and more often before the courts comparing to other forms, giving out the impression that the problem of discrimination is quite complicated .

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, that mediates between citizens and the state in order to settle the claims of the first ones extrajudicially. According to its experience the most common claims are related to recruitment and in particular to set age preconditions as selection criteria, which can be considered as non-legitimate, excessive and disproportional.

Another claim in regard to senior executives involves enhanced redundancy pay given by employers in case of redundancies. In such cases the employers should bare in mind that bonuses, benefits for seniority and allowances re experience and productivity should be included in the compensation, otherwise a direct discriminatory behaviour is noted.

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 Euros. 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 Euros.

Are there any specific exceptions in your laws?

The Law 3303/2005 allows exemptions where the nature of a particular occupational activity justifies a need for a differentiated 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 e.g. 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 Greece 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 can not itself justify a legitimate dismissal, because it will be then considered to be abusive, 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. What, however, can be added here is that, nowadays, it is a common corporate practice instead of dismissals the companies to offer special retirement plan schemes within the scope of voluntary termination.

Interesting cases

Up until now there has not been a judicial decision of the Greek courts on the application or interpretation of the Anti-discrimination Law in relation to the age criterion. Furthermore, it is really too soon to talk about any specific attraction of actionable rights derived from the new Law. It remains to be seen, from now on, how the rights protected by the Law and their relevant infringements are going to be brought and argued before Greek Courts, and also the way the Courts will interpret and apply the provisions of the statute.

However, a number of cases on age discrimination were taken to the Greek Ombundsman, an Independent Authority, operating under art. 103 of the Constitution and the pertinent Law 2477/1977. Its main activity is to research and investigate in concreto as to whether there have been infringements of human rights and especially violations as regards the disability or sex or age or racial discrimination and to illustrate the extent of general discriminatory practices.

According to the aforementioned we will quote two indicative cases that were reported to the GO. In particular, in the first case which introduces the issue of participation in professional organizations irrespective of age, a citizen addressed the GO requesting the investigation of certain provisions of the Lawyer’s Code, and more specifically their compliance with the principle of equal treatment. These provisions set up an upper limit on the age at which the law school graduate may be entered into the registry of trainee lawyers of the Bar Association. The GO ascertained the need for further specification of the provisions of the Lawyer’s Code towards their clean harmonization with the preconditions prescribed in Law 3304/2005 and more specifically their compliance with the requirements related to the legitimate differentiation of treatment due to age in the field of occupation and employment. This will help to avoid the possibility that these provisions be considered contradictory to the principle of equal treatment and consequently as contrary to the existing Law 3304/2005 rescinded (art. 26). For this purpose, the GO addressed the Ministry of Justice, notifying at the same time, the relevant complaint to the President of the plenary session of the country’s Bar Association. A response is pending.

As to the second case, which is related to employment according to set age limits, a citizen submitted a complaint to the GO requesting an investigation into whether the qualifications set out in the official call for candidates experts at the Institute of Immigration Policy comply with the principle of equal treatment, when an upper age limit was set for participation in the selection process. The GO sent a written communication to the President of the Institute requesting the rationale for this deviation from the general prohibition of the setting down of an age limit and examined the compliance of the above procedure with the special preconditions for legitimate exceptions from this general prohibition foreseen by Law 3304/2005. A response is pending