Indirect discrimination on the grounds of age

A complainant filed his complained already in 2011, where he pleaded violation of the right to equal treatment. He complained that his previous employer decided during a board meeting to reduce personal bonuses by 50 % to all workers with a parallel employment relationship. This measure affected also persons receiving old-age pension. The complainant considered this measure to be an instance of indirect discrimination on the grounds of age.

The previous ombudsman, JUDr. Pavel Varvařovský, acting on the basis of an investigation carried out in 2011, concluded that indirect discrimination on the grounds of age could have occurred if the reason for the reduction of the complainant’s personal benefits had been his parallel income in the form of the old-age pension, and the employer could not provide a different, legitimate reason for this measure (e.g. unsatisfactory performance). The complainant subsequently approached the Labour Inspectorate, which did not find any discrimination at the workplace. This is why in 2013 the complainant approached the Defender again with a request for investigation into the procedure of the Labour Inspectorate.

The inspection carried out by the Labour Inspectorate revealed that personal benefits were reduced to all employees within the control sample (18 employees, of which half were receiving old-age pension), therefore the Inspectorate did not find the measure discriminatory with respect to the employees receiving old-age pension. The inspector stated that, within the inspection, one employee receiving old-age pension was always compared against one employee not receiving old-age pension (cross-checking).

The ombudsman Anna Šabatová agreed with the Inspectorate’s conclusion that the employer had not indirectly discriminated the complainant provided that the measure had not put recipients of old-age pension at a disadvantage in comparison with the other employees. This is because, in this case, the basic feature of indirect discrimination, i.e. discriminatory effect of a neutral measure, was not present. However, she concluded that the regional branch of the Labour Inspectorate made an error in that it had failed to adapt the inspection procedures to the specific circumstances of indirect discrimination. In cases of indirect discrimination, it is necessary to evaluate whether a measure has a more severe impact on a specific group sharing a protected trait than on other groups. Adapting the procedure in cases where indirect discrimination in pay on the grounds of age is pleaded could mean, for example, that the inspectors compare the whole group of employees receiving old-age pension with a group of employees who lack the trait which is being discriminated against (i.e. older age associated with receiving old-age pension).

The ombudsman likewise criticised the Inspectorate for not including in the inspection protocol a description of the established facts related to the alleged discrimination, including the reasoning of the inspectors’ conclusions. The inspectors further erred during the inspection in that they failed to address the possible variance between reducing and withdrawing personal benefits with the mandatory provisions of the Labour Code on determining the amount of pay. The State Labour Inspectorate made an error by agreeing with the incorrect procedure of the regional branch of the Labour Inspectorate and failed to provide sufficient expert guidance in the matter.

The Labour Inspectorate reacted to the interim investigation report with an assurance that it agreed with my conclusions and would adhere to them in further inspections. The ombudsman considered this measure sufficient.