If a public employer restricts the selection of which employees it assigns to a so-called “surplus personnel” and then transfers to a so-called job pool to employees of a certain age group, this is according to a decision of the Eighth Senate of January 22, 2009 ( 8 AZR 906/ 07) a direct disadvantage according to § 3 para. 1 AGG because of age. Section 10, sentence 1 AGG permits different treatment based on age if it is objective and appropriate and justified by a legitimate aim.
As legitimate goals in the sense of According to § 10 Sentence 1 AGG, after the decision, not only those that are in the interest of the general public, but also operational and company-related interests are to be considered. Creating and securing a balanced personnel structure can be considered a legitimate goal. To do this, the employer must explain what specific personnel structure it wants to create or maintain and for what reasons. It is not enough for the employer to simply refer to a “balanced personnel structure” or claim that it needs a different age structure.
The claim for compensation according to Section 15 Para. 2 AGG due to non-pecuniary damage due to a violation of the prohibition of discrimination does not presuppose culpable behavior on the part of the employer. The employee does not have to have had his general personal rights violated. If the employer violates the prohibition of discrimination, it can generally be assumed that the employee will suffer immaterial damage. 2009 (1 ABR 47/08) according to Section 3 Para. 2 AGG may be inadmissible indirect discrimination due to age. Employees who have worked for several years are typically older than employees in their first year of work.
Such a restriction may be justified if the employer pursues a legitimate aim and it is proportionate and necessary to achieve that aim. If the reasons listed by the employer are obviously unsuitable, the employer is grossly violating its obligation to advertise without discrimination in accordance with Section 11 AGG. Linking the duration of the professional/activity period with age and the associated effects on the group of applicants for the internal job advertisement was obviously not suitable for achieving the employer’s objectives of ensuring a balanced age structure and limiting personnel costs. According to Section 17 Paragraph, the works council can 2 Sentence 1 AGG in the event of a gross violation by the employer of provisions from the second section of the AGG under the conditions of Section 23 Paragraph. 3 BetrVG to assert the rights mentioned therein in court.