Dissertation_Paula Aleksandrowicz_12 ... - Jacobs University

The EU anti-discrimination directive (Directive 2000/78/EC) was transformed into
German law only at the end of 2006. In apprehension, the German public sector has already
changed its pay scale from an age-based to a tenure-based one. Additional holidays,
preservation of the reached income level in cases of downgrading, and shorter working
hours will be challenged by the new law (Kocher 2005: 316). However, the German legal
practice justifies several exemptions from the Directive:
- the ruling that employment ends at completion of the eligible age for the standard
retirement pension present in many collective agreements, works council agreements
and individual work contracts can be still justified on grounds of public security and the
preservation of a balanced age structure of the workforce (Kocher 2005: 307, 314;
Ruppert 2006: 22). Nevertheless, the anti-discrimination legislation may strengthen
opposing arguments stressing the freedom of choice with regard to the workplace and to
the profession (Waltermann 2006: 142-3);
- well-founded age limits in job ads and recruitment practice are still possible, e.g. for
trainee and apprentice programmes. Some lawyers even claim that the mismatch with
the age profile of customers can justify the exclusion of older/younger applicants
(Kocher 2005: 316);
- during mass lay-offs connected with redundancy payment schemes, a different treatment
of younger and older workers is still justified due to worse job prospects of the latter
(Kocher 2005: 312, 317).
To sum up: A positive trend in German labour market policy is the reversal from deactivating
measures like the facilitated receipt of the unemployment benefit (§248 Social
Code Book III) and the turn to activating measures. However, older unemployed and older
workers are still insufficiently included in active labour market policies and overly
cumulated in passive labour market policies. Only 12.5 per cent of registered unemployed
aged 50+ receive active labour market services, compared to 22.5 per cent of those younger
than 50 (Bach 2006: 75). Only 12.3 per cent of older unemployed profit from further
vocational training and only 7.5 per cent from qualification vouchers (Frerichs 2006: 37).
This impedes their chances for continued employment and for finding a new job (Eichhorst
2006b: 78-79). Especially problematic is the low investment in further vocational training,
both that provided by the employment office and by companies (OECD 2005a: 127-9;
Eichhorst 2006b: 75-76).
The anti-discrimination legislation has so far not altered the age limits in work contracts
and the practice in redundancy payments schemes. The legislation might therefore stay a
mere paper tiger in many ways. Job advertisements are however formulated in an ageneutral
way and this might encourage more applicants past the age of 49.
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