This summary of age discrimination law in Latvia has been prepared by COBALT Latvia, the Ius Laboris affiliate for Latvia: www.cobalt.legal.
OVERVIEW
The Constitution of the Republic of Latvia (the "Constitutional Law"), effective as of February 15, 1922, contains a general prohibition of discrimination and also provides that everyone has the right to freely choose their employment and workplace according to their abilities and qualifications. The Constitutional Law also indicates that those rights can be subject to restrictions in order to protect the rights of other people, the democratic structure of the State public safety, welfare and morals. Thus, age discrimination can be justified if: (i) there is reasonable and objective justification; (ii) it is prescribed by law; (iii) pursues a legitimate aim; and (iv) there is a certain extent of proportionality between the means employed and aims sought to be released.
Moreover, the Latvian Labour Law (the "Labour Law"), effective as of June 1, 2002, provides that everyone has an equal right to work, to fair, safe and healthy working conditions, as well as to fair work remuneration. The said rights shall be ensured without any direct or indirect discrimination, irrespective of a person’s race, skin colour, gender, age, and disability, religious, political or other conviction, ethnic or social origin, property or marital status or other circumstances.
Both the Labour Law and the Constitutional Law permit the use of age-based distinctions when necessary as a result of a genuine occupational requirement, and also permit the use of age criteria in circumstances which would otherwise constitute direct discrimination when this can be demonstrated to be objectively necessary to achieve a legitimate and proportionate aim. Indirect age discrimination can also be justified if objectively necessary and proportionate.
This is demonstrated by the general prohibition to stipulate age requirements in an employment advertisement, except in cases when the law prescribes a certain age requirement for the particular position. For example, Article 9 of the Constitutional Law provides that only a citizen of Latvia who has reached the age of 21 can be elected as a member of the Parliament.
In addition, the Labour Law prohibits applying sanctions to an employee or to otherwise directly or indirectly cause adverse consequences for him/her because the employee, within the scope of his/her employment relationships, exercises his/her rights in a permissible manner.
The Labour Law does not specifically indicate harassment as a type of discrimination, which is so indicated under the Council Directive 2000/43/EC. The Labour Law also provides that a person's rights shall be ensured without any discrimination, irrespective of circumstances. The Labour Law’s wording "other circumstances" is interpreted by Latvian courts in the light to include various types of discrimination.
Directives combating discrimination, Council Directive 2000/43/EC, Council Directive 2000/78/EC, Directive 2002/73/EC and Directive 2006/54/EC are implemented in the Labour Law.
WHO'S COVERED?
The Labour Law only covers prohibition of age discrimination against employees. The Constitutional Law, however, sets down a general principle of equality and rights on employment and in the workplace, and the possibility to restrict such rights under certain circumstances. Thus, the scope of the Constitutional Law is broader and it covers all people, whether employed on the basis of an employment contract, self-employed, agents or others.
The prohibition of age discrimination is not limited to a certain age or limited in any other ways. There are no categories of employees who are excluded from the prohibition of age discrimination.
WHAT ENFORCEMENT / REMEDIES EXIST?
Age discrimination is not a criminal offence.
The Labour Law provides that if the prohibition against differential treatment is violated, the employee also has the right to request compensation for damages and compensation for moral harm. In case of dispute, a court at its own discretion shall determine the amount of compensation for moral harm.
According to the Civil Law, Section of Contract Law, effective as of March 1, 1993, every prohibited action as a result of which damages (including moral harm) that has been caused, gives the offended party the right to ask for compensation. Claims concerning discrimination cases can be brought in front of a court with a general jurisdiction for hearing legal claims.
In the case of age discrimination an employee is entitled to directly file a claim with a court. In addition, any person can file a claim with the Constitutional Court to evaluate the compliance of any legal provision with the Constitutional Law.
The State Labour Inspection, established in 1992, is entitled to take measures to ensure effective implementation of the state policy in the field of employment legal relationships, labour protection and technical supervision of dangerous equipment. The State Labour Inspection supervises and controls merchants, state and local governmental institutions, religious and public organisations, employers and their authorised persons, and any places in an undertaking that are accessible to employees in the course of their work. The State Labour Inspection is entitled to review complaints, issue warnings, instructions, apply administrative penalties or inform the prosecutor's office, state and local government institutions about violations of labour laws.
The National Human Rights Office, established in 1996, became the Ombudsman Office in 2007. The Ombudsman is working, inter alia, to ensure equal treatment and prevention of discrimination. The Ombudsman is entitled to react to such violations and file a claim with the respective court.
HOW COMMON ARE CLAIMS?
Claims on age discrimination are not very common.
First judgements involving age discrimination were taken only in 2003. Overall 73 discrimination complaints were received by the Ombudsman during 2022, however, there is no publicly available data how many of those, if any, were related to age discrimination.
In comparison to other forms of discrimination, claims regarding age discrimination are much less common than, for example, claims regarding sex discrimination.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
The most common cases to be brought in front of a court are those related to gender discrimination and racial discrimination. One of the most common mistakes by employers is to set higher remuneration for the same work or offer more bonuses in a similar situation for male employees than for female employees.
Age discrimination relating to employment of individuals approaching the age of retirement may be more common in the future.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?
Employing children is not allowed (children within the meaning of the Labour Law are persons below the age of 15, or 18 if he or she continues to obtain elementary education). Nevertheless, there is an exception to this. In certain cases, persons can be employed already from the age of 13. The general retirement age in Latvia is the age of 64 years and 6 months for both men and women and it will increase up to 65 years until year 2025.
There are specific professions which are governed by separate laws and which require certain physical capacities in order to fulfil the job duties. Such professions are policemen, firemen, seamen, professional dancers, etc., and in most cases the retirement age limit for these professions is below the general retirement age. There are also specific professions, where the age limit is above the general retirement age, e.g., the maximum age for holding an office as a judge is - 70 years. Supreme Court judges have a possibility to extend the term up to 5 years.
If a collective agreement or an employment contract provides for any benefits, bonuses or other conditions to be fulfilled prior to terminating the employment relationship and such conditions are in line with the respective labour laws, the employer has to fulfil the agreed conditions prior to the dismissal. The Labour Law provides that under certain circumstances upon giving a notice of termination, an employer has a duty to pay severance pay to an employee, depending on the years of service the employee has worked for the respective employer, i.e., the longer he/she has worked, the higher is the severance pay.
Where there is a reduction of employees, preference is given to those with higher performance results and higher qualifications. Should performance and qualifications not substantially differ, the preference to remain in employment shall be given for employees of certain categories, among which are persons who have less than five years until reaching the retirement age.
RETIREMENT AGES
There is no mandatory retirement age in Latvia. The Labour Law does not provide an age above which employers can dismiss employees without the employer needing to objectively justify the dismissal in order to avoid a finding of unlawful age discrimination. By reaching the regular retirement age of 64 years and 6 months, the discretion whether to retire or not lies with the employee. The employer may not terminate the employment relationship due to the fact that the person has reached the said retirement age. An exception is provided for civil servants where the civil servants must be terminated upon reaching the retirement age unless a special decision is adopted on extending the civil service.
In addition, the employment of state civil servants is regulated under a separate law (State Civil Service Law) and it includes an age limit of employment with the state civil service. State civil servants can be dismissed without needing to objectively justify the dismissal upon reaching the general age of retirement.
INTERESTING CASES
Judgment of the Supreme Court of the Republic of Latvia, Department of Administrative Cases of 27 August 2014 in Case No A420322813
In 2010, the applicant reached the state retirement age, but was allowed to continue working in the state civil service. In 2012, she was dismissed from the state civil service on the ground of having reached the state retirement age, pursuant to Article 41(1)(f) of the State Civil Service Law. The Supreme Court has concluded in this case that, under Section 41(1)(f) of the State Civil Service Law, the attainment of retirement age in itself enables an institution to treat a person differently from others with regard to future employment, and that provision does not require additional grounds for dismissal of a civil servant who has attained retirement age.
In its judgment of 18 December 2003 in Case No 2003-12-01, the Constitutional Court recognised that the above-mentioned norm complies with Articles 91, 101 and 106 of the Constitution of the Republic of Latvia, and the contested norm harmonises the interests and rights of different generations, including the right to occupation. Thus, in the present case, the differential treatment of a civil servant who has reached the state retirement age is objectively and reasonably justified, since the norm has both a legitimate aim and the means of achieving it are appropriate and proportionate. There is no discrimination on grounds of age.
Judgment of the Administrative Regional Court of 25 May 2015 in case No A420313114
The applicant was dismissed from his post as a civil servant because he had reached the State retirement age. The applicant considered that there had been age discrimination and that he had been dismissed from his post because he had previous legal disputes with the defendant (the State Revenue Service). The Court found no age discrimination. Section 41(1)(f) of the Civil Service Law clearly implies the authority's right to dismiss a civil servant upon reaching the state pension age without any specific justification. The provision provides for a reasoned order for the removal of a civil servant who has reached retirement age, but the provision does not require additional grounds for the removal of a civil servant who has reached retirement age, since reaching retirement age is in itself such a ground.
The applicant has requested the Administrative Regional Court to refer the matter to the Court of Justice of the European Union for a preliminary ruling. The Regional Court finds that there are no legal grounds for granting the request. The Court of Justice of the European Union has held, inter alia, that the prohibition of discrimination on grounds of age introduced by Directive 2000/78 must be interpreted as precluding national legislation (...) under which rules on compulsory retirement are regarded as lawful, (... ) and which require, as the only conditions for retirement, that the worker has reached a certain age, (...) and satisfies other social security criteria in order to be entitled to a contributory retirement pension (...) (see paragraph 77 of the judgment of the Court of Justice of the European Union of 16 October 2007 in Case C-411/05). The termination of employment contracts of workers who fulfil the age condition and have contributed to a pension has long been part of the labour law of several Member States and is widely used in employment relations. This mechanism is based on a balance between political, economic, social, demographic and/or budgetary considerations and depends on the choice to prolong the active life of workers or, on the contrary, to provide for their early retirement (see paragraph 44 of the judgment of the Court of Justice of the European Union of 12 October 2010 in Case C-45/09). Article 6(1) of Directive 2000/78 allows derogations from the principle of non-discrimination on rounds of age only for measures justified by legitimate social policy objectives, such as employment, labour market or vocational training policy objectives. It is for the national court to ascertain whether the legislation in the main proceedings is consistent with such a legitimate aim and whether the national legislature or administrative authority, having regard to the discretion of the Member States in the field of social policy, could reasonably consider that the means chosen are appropriate and necessary to attain that aim (see paragraph 52 of the judgment of the Court of Justice in Case C-388/09). Accordingly, the Court of Justice of the European Union has held that legislation providing for the compulsory dismissal of an employee on reaching retirement age is compatible with European Union law if it is objectively and reasonably justified.
Judgment of the Supreme Court of the Republic of Latvia, Department of Civil Cases of 17 May 2017 in Case No C32387111, SKC-126/2017
The applicant, who worked for the Office for Citizenship and Migration Affairs, was unduly disciplined and received a low performance evaluation in an unjustified and unfair manner. The evaluation was carried out using psycho-emotional tests and amounted to discrimination on grounds of age. Witnesses testified that the evaluation usually lasted up to 30 minutes, but in the case of the 70-year-old applicant it lasted three and a half hours (this is the only case). Moreover, the evaluation was repeated and the evaluation committee included two employees who had previously participated in the disciplinary proceedings. The Court of First Instance and the Court of Appeal dismissed the applicant's action on the ground that she had failed to prove that discrimination, mobbing and bossing had taken place. However, in the present case, the reverse burden of proof is placed on the employer if the employee alleges circumstances which are prima facie indicative of possible mobbing, bossing, psychological strain and discrimination. The applicant alleged such circumstances, whereas the defendant did not prove that the applicant was not subjected to the prohibition on disparate treatment and that there were no adverse effects. In the event of a dispute where an employee alleges facts or circumstances which may indicate possible discrimination, the burden of proving that there has been no direct or indirect discrimination shifts to the employer (section 9(2) and section 29(3) of the Labour Law). The case was remitted for a new hearing.