This summary of age discrimination law in Cyprus has been prepared by George Z. Georgiou & Associates LLC, the Ius Laboris member for Cyprus: www.gzg.com.cy.
OVERVIEW
Article 28 of the Cypriot Constitution contains a general anti-discrimination provision which is in accordance with a number of International Conventions ratified by the Republic of Cyprus. Discrimination on the grounds of age, disability and sexual orientation is not covered by the Constitution.
Instead, this is covered in the Law 58(I)/2004 on the Equal Treatment in Employment and Occupation Law (the “Law”). The Law harmonises Directive 2000/78/EC and governs the right to equal treatment in employment. It sets out the framework prohibiting workplace discrimination on the grounds of race or ethnic origin, religion or beliefs, sexual orientation and age. It promotes equal treatment and the principle of non-discrimination (either direct or indirect) on the grounds of age (amongst other forms of discrimination).
WHO’S COVERED?
The Law covers all natural and legal persons of the public and private sectors in relation to:
terms of access to employment, self-employment and work including selection criteria and terms of recruitment, in all sectors of activity and on all levels of professional hierarchy, including promotions;
access to all types and levels of vocational orientation, professional training, education and professional re-orientation, including the acquisition of practical professional experience;
working conditions and terms of employment, including terms for dismissals and remuneration; and
membership and participation to employees or employers organisations or any organisation the members of which exercise a specific profession including the advantages which are given by such organisations.
WHAT ENFORCEMENT/REMEDIES EXIST?
With the exception of the Supreme Court which has jurisdiction over administrative actions, persons who claim that they have suffered discrimination may submit a complaint to the Equality Authority of the Office of the Commissioner for Administration (Ombudsman), which has relevant jurisdiction to examine the complaint under the Combating of Racial and Other Forms of Discrimination (Ombudsman) Law 42(I) 2004, or initiate a court action. Litigation could be initiated either in the Labour Dispute Court or the District Court. The Labour Dispute Court can order fair and reasonable compensation, which covers damages suffered by the victim plus legal interest whereas the District Court may award the higher of either: (a) fair and reasonable compensation or (b) the damage suffered by the victim plus legal interest.
Trade unions, other organisations or legal persons may also, with the approval of the complainant, submit complaints to the Ombudsman. This procedure is cost-free, simple and flexible.
The Law provides protection for the complainant, by prohibiting any unfavourable treatment or consequence against that person.
Persons found to be guilty of discrimination may be ordered to pay a fine that cannot exceed €6,834 and/or imprisonment of up to six months or both. A maximum penalty of €11,960 applies to legal entities. If gross negligence is the reason for the offence, the fine cannot exceed €3,417. For legal entities the maximum penalty is €6,834.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
In 2020, 65 complaints regarding unlawful discrimination were submitted to the Ombudsman. More than half of all complaints concerned discrimination on the grounds of sex, while and approximately 4 of these concerned discrimination on the grounds of age.
The trickiest areas for employers are at the stages of recruitment and termination of employment. In regards to the recruitment, whilst there are no specific restrictions or prohibitions against background checks in relation to the prior work experience and qualifications of a potential employee, questions relating to the timing of the education and training of an applicant may give rise to a potential age discrimination claim.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAW?
The Law allows for differential treatment based on the grounds of racial or ethnic origin, religion or belief, age, disability and sexual orientation when the nature of the particular occupational activity or the context in which these are carried out is such that a specific characteristic constitutes a substantial and determining employment precondition, provided that the aim is legitimate and the requirement proportionate. In connection specifically to age discrimination, Article 8 (1) of the Law provides that differential treatment on the grounds of age does not constitute discrimination if;
(a) it is objectively and reasonably justified by a legitimate objective, in particular with regard to policy in the field of employment, labour market and vocational training; and
(b) the means for the achievement of this objective are appropriate and necessary.
This “objective justification” test should always be applied to minimise the risk of unfair treatment of persons of certain age.
Article 8(2) of the Law sets out some specific examples of when differential treatment on grounds of age is allowed. These are:
the establishment of special conditions for the access to employment and vocational training, for employment and work, including dismissal and remuneration terms, applicable to young people, the elderly and employees with dependent persons, in order to favour their professional integration or secure their protection;
the establishment of minimum age, professional experience or seniority limits in employment or in some benefits connected to employment;
the establishment of a maximum age limit for recruitment, based on the experience requested for the job or the need of a reasonable period for employment before retirement; and
the armed forces to the extent that the fixing of an age limit is justified by the nature and the duties of the occupation
Moreover, the determination of age for the purposes of retirement or disability allowances offered by professional systems of social insurance, including the establishment of a different age limit for employees or groups or categories of employees and the use of age criteria in the actuarial calculations does not constitute discrimination.
RETIREMENT AGES
With the exception of miners, old-age pension is payable at the statutory pensionable age of 65 for both men and women, provided that the applicant meets criteria set out in the Social Insurance Law and this is not conditional on retirement from regular employment. Under certain conditions a person can qualify for early retirement pension at the age of 63. However, early retirement is penalised with a reduction in the pension.
Individuals over the age of 65 are no longer required to make contributions to the social insurance system, unless they have not fulfilled the requirements for old-age pension. In this case, the person must continue to make contributions until the requirements are met or the person turns 68 years old. No contributions are payable after the age of 68. Under certain conditions, if an insured person reaches the age of 68 and has not fulfilled the requirements to be entitled for an old age pension, then the individual may apply for an old age lump–sum payment.
The private sector does not have a mandatory retirement age and therefore this can be agreed between parties, or such age can be according to custom and practice of the employer. It should be noted that people working beyond the statutory pensionable age do not have recourse to the employment courts for award of compensation for unfair dismissal claims, or for a redundancy pay in accordance with the Termination of Employment Law L.24/1967. However, individuals may still bring claims for discrimination or unlawful wage reduction to the Employment Tribunal.
On 1st January 2013, the Social Insurance Law was amended and now provides for an actuarial reduction of the old–age pension in cases where the insured person, who satisfied the conditions for old-age pension at the age of 63, chooses early retirement. The reduction is calculated based on the actual age the insured person chooses to retire.
INTERESTING COURT CASES
Nicoletta Charalambidou vs The Republic of Cyprus, the Finance Minister and the Attorney General Case No. 1695/2009
In a recent decision, the Supreme Court of Cyprus elaborated on the following questions asked by the applicant:
(i) Whether the decisions of the Equality Authority issued under Law were binding on public administration; and
(ii) Whether Article 27(1) of the Pensions Law N. 97(I)/97 violates the Law as it provided for fewer retirement benefits for public servants retiring before the age of 45, and whether it ought to be amended.
The applicant was a former public servant who had opted to retire before reaching 45 and was denied part of the retirement benefits available to other retiring public servants based on Article 27(1) of the Pensions Law. The applicant then applied to the Supreme Court under Article 146 of the Constitution, seeking to annul the 2009 decision of the Ministry of Finance.
In 2008 the Equality Authority ruled that the said legislative provision amounted to age discrimination prohibited by the Law and proposed its amendment. In its decision the Equality Authority stressed that the implementation of the age limit of 45 was not appropriate and necessary for the achievement of the set aim and thus it cannot be justified under Article 8(1) of the Law.
The Attorney General, to whom the Ministry of Finance had applied for his opinion, did not share the Equality Authority’s position. Relying on the opinion of the Attorney General, the Ministry of Finance informed the applicant that that the relevant provisions of Law 97(I)/1997 did not conflict with the equality acquis or Cypriot law and therefore did not need to be amended.
In relation to the first question, Law 42(I)/2004 which appoints the Ombudsman as the Equality Authority provides in Article 39 that the Equality Authority must inform the Attorney General regarding legislative changes deemed necessary in order to comply with the equality acquis, following which the Attorney General must inform the Council of Ministers regarding measures to be taken. The Supreme Court concluded that the validity of the opinion of the Attorney General is thus subject to judicial review. It added that Article 39 of Law N. 42(I)/2004 can only be interpreted so as to mean that the Attorney General must inform the executive regarding changes in the legislation deemed necessary by the Equality Authority because the law contains unlawful discrimination. The Court stated that the wording in Article 39, “measures that can be taken” can only mean measures based on the recommendations of the Equality Authority.
The Court further noted that the Law gives exclusive jurisdiction to the Equality Authority to examine discrimination complaints and therefore any decision of the Equality Authority can be reviewed by a body that is hierarchically higher than the Equality Authority but not by the Attorney General, whose mandate is restricted to advising the Minister or Ministers about measures to be taken on the basis of the Equality Authority’s recommendations. In the present case, the public administration rejected the applicant’s claim relying on the opinion of the Attorney General, which was based on an incorrect interpretation of the law and ignored the recommendation of the Equality Authority; this procedure was, according to the Supreme Court, wrongful and in breach of Article 39 of Law 42(I)/2004.
Based on the reasons above, the Court ruled that the decision in regards to the applicant’s retirement package was wrongful and ought to be set aside.
Avgoustina Hadjiavraam Vs Morfou Cooperative Credit Society Case No. 258/05
In this case, the Plaintiff was excluded on the grounds of age by the Respondents’ clerical staff recruitment procedure, in violation of the Law. In the said recruitment procedure an age limit was imposed, which was the 26th year for lyceum graduates and the 31st year for university graduates. The Plaintiff alleged that whilst she fulfilled all qualifications for the said position the Respondents rejected her application on the grounds that she was above the age limit which was a prerequisite for recruitment.
Based on the evidence presented to the Court, the Respondents failed to prove that the Plaintiff had not been treated unfavourably on grounds of age. The Labour Dispute Court ruled that the Plaintiff had been subjected to direct discrimination on grounds of age in violation of the Law.
Interesting equality authority reports
In 2015 a job candidate, who applied for one of the 11 temporary job positions advertised by the Municipality of Nicosia, failed a complaint with the Equality Authority against Nicosia Municipality in regard with breach of the provisions of the Law during the recruitment proceedings. In particular the complainant alleged Nicosia Municipality breached the provisions of the Law on the basis that the recruitment procedure documents stated that, in the event that the job applicants obtain the same test scores, the criteria used to select the successful candidates would be as follows: (a) their academic qualifications (b) their experience and (c) their date of birth (in that younger candidates will be favoured). The Equality Authority, after examining the complaint, reported that the recruitment process did in fact violate the anti-age-discrimination law as the age criterion set in the recruitment process was not intended towards a legitimate aim. Therefore, it constituted discrimination on the grounds of age. Furthermore, the Authority noted that by setting an age criterion the Nicosia Municipality expressed its preference to choose, in the event of candidates with the same test scores, younger candidates without substantiating any reason for that preference. As a rule, the Authority said, when individuals favour candidates because they are younger, they express an inaccurate, simple and stereotypical perception that older people do not have the same readiness and ability to work, do not adapt to new developments and do not have sufficient incentives. Thus, unless the age criterion meets the requirements of the proportionality principle, it implies different treatment on the grounds of age and therefore constitutes an act of direct discrimination prohibited by law.
The same year, the Equality Authority heard another two very interesting cases regarding upper age limits:
The first regarded a complaint made by a group of special police officers claiming that the regulations governing their recruitment to regular police officer’s positions violated the anti-discrimination law in that they set an upper age limit (40 years old for candidates with a university degree and 28 years old for candidates without a university degree). The Equality Authority reported that the age limits set in the regulations could not be justified by the legitimate aim proposed by the Cyprus Police - i.e. that of operational readiness. Also, the Equality Authority stated, setting an upper age limit was not an appropriate or necessary measure to achieve such an aim. Therefore, the age limits set in the regulations constituted direct discrimination on grounds of age prohibited by law (Equality Authority Report No AKI 14/2015, issued 29/06/2016)
The second case regarded an ex officio examination by the Equality Authority in respect of the recruitment of 3000 military personnel by the Ministry of Defence. The Equality Authority, after thoroughly examining the recruitment criteria set by the Ministry, reported that the procedure violated both age and sex anti-discrimination law because only men under the age of 32 were entitled to apply for the job. In its report the Authority mentioned that the Law and the Directive could allow the setting of an age limit if it serves a legitimate aim that objectively and reasonably justifies the difference of treatment to which it gives rise and if that limit is an appropriate and necessary means of achieving that aim. However, in this case, the reasoning of the Ministry that setting an age limit is ‘necessary for the sufficient and successful exercise of the duties of the members of the national Guard’ and ‘is directly related to their physical condition that is necessary to ensure the operational readiness and proper functioning of the Armed Forces’ was not enough to justify that the measure taken was ‘appropriate and necessary’. In order to justify such a measure, the Ministry should have produced scientific evidence that proves that setting an upper age limit was a necessary and appropriate measure to achieve the legitimate aim intended, i.e. the successful exercise of the duties associated with the specific job position (Equality Authority Report No AKI20/2015, issued 28/06/2016).