Latvia – agediscrimination.info

Lejins, Torgans & Partners
www.lt-v.lv

Overview

Satversme, the constitutional law of the Republic of Latvia (the “Constitutional Law”), effective as of February 15, 1922, contains 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 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 aim and proportionate to the aim sought. Indirect age discrimination can also be justified if objectively necessary and proportionate.

In addition, the Labour Law prohibits to apply 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. In the same time the Labour Law 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 forth general clause of equality and rights on employment and workplace, and the possibility to restrict such rights under certain circumstances. The Constitutional Law is applicable to all people in the Republic of Latvia, namely, 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 of general jurisdiction.

In case of age discrimination an employee is entitled to directly file a claim with a court of general jurisdiction. In addition, to ensure anti-discriminatory legislation any person can file a claim with the Constitutional Court 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, is entitled to examine and review complaints concerning human rights violations and to react to such violations and file the 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 Constitutional Court only in 2003.

According to statistics available on the official website of the National Human Rights Office, in year 2005, among different types of discrimination the majority complaints were filed in relation to discrimination with regards to the gender (55 complaints); next is racial discrimination (15 complaints); discrimination on the basis of sexual orientation (8 complaints); age discrimination (8 complaints); national or linguistic discrimination (5 complaints); discrimination on the basis of social origin or property status (2 complaints); discrimination on the basis of religious, political or other beliefs (1 complaint). In comparison with year 2002, the number of age discrimination complaints has decreased from 31 complaints in 2002 down to 8 complaints in 2006.

What claims are most common and what are trickiest issues for employers?

The most common cases to be brought in front of a competent court are those related to gender discrimination. One of the most common mistakes by employers is to advertise an available position by indicating the favourable gender of a potential employee. Thus, we expect that cases in relation to gender discrimination within the process of recruitment can increase.

Other types of discrimination cases, which may increase, are those related to sexual orientation discrimination and age discrimination. The employers do not wish to employ people with approaching age of retirement.

Since discrimination issue is extremely sensitive and discrimination cases brought in front of a court are relatively rare (comparing to other types of cases), it is well possible that discrimination cases are reflected in media.

Are there any specific exceptions in your laws?

Each person can be employed form the age of 15 years. The general retirement age in Latvia is the age of 62 years for men and 61 years for women (at the moment Latvia is still in the transitional period of increasing the retirement age of women up to 62 years).

Nevertheless, there are specific professions (governed by separate laws), requiring certain physical capacities in order to fulfil the job duties which provide for the age limit reaching of which may result in termination of the employment relationship. Such professions are policemen, firemen, seamen, professional dancers, etc. 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., 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 a severance pay to an employee, which depend 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 case of a reduction of employees, preference to continue employment relations shall be for 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, for whom less than five years remain until reaching the age of retirement.

Retirement ages

The Labour Law does not provide the 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 to the above mentioned professions requiring certain physical capacities, the employment relationship of state civil servants is also regulated under a separate law (State Civil Service Law) and it includes age limit of employment with the state civil service. State civil servants can be dismissed without necessity to objectively justify the dismissal upon reaching the general age of retirement.

Interesting cases

Both cases to be described were filed with the Constitutional Court 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) with the institution of higher education 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 Constitutional Court.

The Constitutional Court recognised the fact of age discrimination and confirmed that the respective provisions of laws are not in compliance with the 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 the claim with the Constitutional Court based on the fact that certain provisions of the State Civil Service Law are discriminatory in relation to the person’s age, i.e., the state civil service employment relationship shall 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 Constitutional Court did not recognise the fact of discrimination with regards to age and adjudicated the respective provisions in conformity with the Constitutional Law. In State Civil Service Law case, the fact of age discrimination was not recognised because the Constitutional Court held differences form the University Law case. The court’s reasoning was that the provided age restriction is proportionate to the legitimate aim of the respective law.