Age-discriminatory dismissal in small businesses

As a rule, an employer who only runs a small business does not have to fear dismissal protection proceedings. If no more than 10 employees are employed in a company, the Dismissal Protection Act does not apply in accordance with Section 23 KSchG. In these cases, the employer does not have to give reasons for an ordinary termination. Rather, the employee must then explain why such a termination violates legal regulations despite the lack of applicability of the Dismissal Protection Act, for example because it is immoral or breach of good faith. In practice, such cases play only a very minor role.

It attracts even more attention when the Federal Labor Court considers a termination to be ineffective despite the lack of applicability of the Dismissal Protection Act, as was recently the case with judgment dated July 23, 2015 (file number 6 AZR 457/14).. In this case, the employee of a group practice who was employed as a medical assistant was terminated with the information that changes in the laboratory area required a restructuring of the practice. The four younger colleagues were not given notice of termination. With the termination, the employer stated that the plaintiff was “now entitled to a pension”. The judges of the Federal Labor Court recognized this statement, which the employer justified by saying that he simply wanted to word the termination in a friendly and binding manner, as an indication of discrimination against the plaintiff because of her age. The employer was unable to refute this indication of age discrimination in the proceedings, which is why the Federal Labor Court ultimately deemed the termination to be ineffective due to a violation of the prohibition of discrimination in Section 7 Paragraph 1 of the General Equal Treatment Act.
Even if the reasons for the decision have not yet been published, but only a press release has been published, it is clear that employers are generally not well advised to justify terminations with references to age. Not only that the termination notice given was declared invalid - in this case even despite the lack of applicability of the Dismissal Protection Act. The legal dispute was also referred back to the State Labor Court so that it can clarify whether and, if so, to what extent the plaintiff is entitled to additional compensation claims due to the assumed discrimination.