Luxembourg

This summary of age discrimination law in Luxembourg has been prepared by Castegnaro, the Ius Laboris member for Luxembourg: www.castegnaro.lu

OVERVIEW

In order to enforce compliance with the principle of equal treatment, the EU Framework Directive 2000/78 was implemented by the law of 28 November 2006 and by the law of 13 May 2008. These measures prohibiting both direct and indirect discrimination have been introduced into the national legal system to protect employees against dismissal or other adverse treatment by the employer. 

According to Article L.251-1 of the Labour Code (the Code), direct discrimination occurs where an individual is treated less favourably than another person has been or would be treated in a comparable situation on any of the following grounds: religion or belief, disability, age, sexual orientation, actual or supposed membership or non-membership of a nationality, an ethnic group or a race.

Indirect discrimination occurs where an apparently neutral provision, criterion or practice would put persons of a particular religion or belief, disability, age, sexual orientation, actual or supposed membership or non-membership of a nationality, an ethnic group or a race at a particular disadvantage compared with others, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Age discrimination

Article L.251-1 of the Code specifically prohibits any direct or indirect discrimination on the ground of age. However, certain exceptions apply as per Article L.252-2(1) of the Code which sets out that “differences in treatment on grounds of age shall not constitute discrimination, if they are objectively and reasonably justified between others by legitimate aims, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary”. Additionally, Article L.252-2 (2) of the Code stipulates that ”the objective and reasonably justified determination, for social security professional regimes, of membership-ages or of eligibility-ages to pension benefits or disability benefits, including the determination for these regimes of various ages for employees or group or categories of employees and the use within the frame of these regimes of age-criterions in actuarial calculus, does not constitute an age discrimination upon the condition that it does not result in a sex discrimination.”

Harassment

Without prejudice to specific provisions on sexual harassment and bullying in the place of work, harassment shall be deemed to be a form of discrimination. It is defined as unwanted conduct related to any of the grounds referred to in paragraph (1) of Article L.251-1 of the Code, which has the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.

Harassment in the context of employment relations (i.e. employment relationships involving all employees as defined in article L. 121-1 of the Labour Code, as well as interns, apprentices and pupils and students employed during school holiday) is any conduct which, by its repetition or systematic nature, undermines the dignity or the mental or physical integrity of a person.

Business travel, professional training and communications in connection with or as a result of work by any means whatsoever, even outside normal working hours, are an integral part of the employment relationship.

WHO'S COVERED?

The laws apply to all persons, both in the public and private sectors, including public bodies.

There are no specific limitations – the laws cover all ages and protects against discrimination of all age groups, be it young or old.

However, the laws do not apply to civil servants with regards to:

• conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;

• employment and working conditions, including dismissals and pay.

Instead, civil servants are protected by other distinct laws.

In the context of an employment relationship, all employees, as well as interns, apprentices and pupils and students employed during the school holidays, are protected against moral harassment.

WHAT ENFORCEMENT/REMEDIES EXIST?

Under article 455 of the Penal Code, employers can face criminal sanctions for discrimination which range from eight days to two years imprisonment and/or a €251 to €25,000 penalty.

Harassment is covered under the law of 11 August 1982 on the protection of private life. A person who has deliberately troubled or bothered someone by repeated and inopportune phone calls or who has harassed this person by written messages or any other form of messages may face sanctions which range from 8 days to one year imprisonment and/or €63 to €1,250 penalty.

The law of 5 June 2009 has introduced an Article 442-2 in the Penal Code. This article provides for sanctions against stalking, which range from 15 days to two years imprisonment and/or a penalty of €251 to €3,000.

The Labour and Mines Inspectorate is entrusted with the application of the legislation and breaches of the Penal Code are dealt with by the Tribunal d’arrondissement, Chambre correctionnelle.

As far as the employment relationship is concerned, the Employment Court (Tribunal du travail) is the forum for complaints.

The Centre for Equal Treatment set up by the law of 28 November 2006 may advise the parties but may not intervene in the trial itself.

According to Article L. 253-4 of the Code, when a person bound by a collective agreement sues someone in a court regarding that collective agreement for problems of equal treatment, any trade union who signed the collective agreement may intervene if the solution of the litigation might represent a collective interest for its members. This is, however, not possible if the claimant disagrees to such an intervention.

Trade unions which are representatives at the national level or in a very important economic sector may exercise the same rights of claim as the victim of discrimination in any judicial or administrative procedure concerning an infringement of the legal provisions on discrimination. In order to be lawful, the trade union’s action must concern an infringement of the legal provisions on discrimination which is prejudicial to a collective interest that the trade union is bound to protect. Trade unions do not have to prove that they have a material/moral interest to bring the action. When the facts were committed against individuals, the trade unions may exercise the same rights of claim as the victim of discrimination only if those persons expressly declare on a written document that they agree with it.

A fine of between 251 and 2,500 euros shall be imposed on :

1° any employer, employee, customer or supplier of the company who commits acts of psychological harassment ;

2° any employer who fails to take steps to put an immediate stop to acts of harassment;

3° an employer who fails to determine the measures to be taken to protect employees against harassment;

4° an employer who fails to carry out an internal assessment ;

5° the employer, the hierarchical superior, the work colleague or any external person in contact with the employer, in particular the company's customer or supplier, in the event of reprisals.

In the event of a repeat offence within two years, these penalties may be increased to twice the maximum.

These sanctions apply only to moral harassment and not to discrimination.

HOW COMMON ARE CLAIMS?

Claims are very rare. Cases are generally resolved prior to the litigation stage on an amicable basis.

WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?

The Rapport d’activité du Centre pour l’Egalité de Traitement, a survey published by the Centre for Equal Treatment (the Centre) in 2022 indicated that race was the most common type of discrimination, with 48 complaints filed to the Centre in 2022. The survey also showed that age and sexual orientation were the least common types of discrimination.  

In practice, the most common types of discrimination based on the age are either: (i) discrimination against old workers for recruitment, harassment, access to promotion and dismissal; or (ii) discrimination against young workers' for remuneration.

RETIREMENT AGES

According to Article L.125-3 of the Code, an employee’s employment automatically ends on the day the employee gets a retirement pension or at the latest, at the age 65 (subject to the employee’s entitlement to a retirement pension). Employers do not need to terminate the employment of the employee.

An employer may not force an employee to retire before that age.

INTERESTING CASES

Whilst not a case, it may be worth noting that effective from 8 April 2018, employees who are entitled to an old-age pension are now entitled to severance pay. Prior to this change, employees who were entitled to old-age pension were not entitled to severance pay where they have been terminated with notice.

South Korea

This summary of age discrimination law in South Korea has been prepared by Yulchon LLC: www.yulchon.com

OVERVIEW

The Prohibition of Age Discrimination in Employment and Aged Employment Promotion Act (the “AEPA”) is the primary law that specifically deals with age discrimination related issues in Korea.  Although other laws such as the Framework Act on Employment Policy and the National Human Rights Commission Act (the “NHRCA”) also have provisions prohibiting age discrimination in employment, those other laws by themselves provide only an investigatory procedure resulting in a non-binding recommendation or a mere statement, with no means of obtaining enforceable, binding remedies for age discrimination.  To remedy this absence, the AEPA was enacted in 2008, amending the former Aged Employment Promotion Act.  A major impetus for the enactment of the AEPA was the fact that many Korean companies had been setting age limits or considering age as a factor with respect to recruitment and redundancies, which had become a social issue of great concern in Korea. 

Age discrimination under the AEPA means treating a person or members of an age group disadvantageously compared to other persons of a different age or age group under similar circumstances.  The concept of discrimination includes not only economic disadvantages but also non-economic disadvantages.  Disadvantages that have not occurred but are expected to occur in future also fall within the concept of discrimination.

Direct Discrimination (Disparate Treatment)

Article 4-4(1) of the AEPA expressly prohibits employers from discriminating, without justifiable grounds, against individuals on the basis of age regarding recruitment and employment; salary, education and training; placement, transfer, or promotion; and retirement or dismissal.

Indirect Discrimination (Disparate Impact)

Any adverse effect on a certain age group that results from applying standards that are on their face age-neutral is deemed to be age discrimination absent sufficiently justifiable reasons. The prohibition of indirect discrimination may bar the use of seemingly neutral standards such as knowledge, experience or qualifications, where as a result of applying these standards, a certain age group is unreasonably disadvantaged.

Since the AEPA only prohibits discrimination without justifiable grounds, if an employer is able to prove justifiable grounds for the employer’s discriminatory act, or policy with a disparate impact on a certain age group, the employer has not violated the AEPA.

WHO’S COVERED?

The AEPA applies to virtually all employers of any size, and covers all age groups meaning that both elderly and younger workers are protected from discrimination.  It should be noted, however, that the AEPA’s obligation to “endeavour” to employ aged people at a certain minimum workforce ratio, and to file reports regarding one’s aged employment ratio) only applies to employers with at least 300 employees.

WHAT ENFORCEMENT/REMEDIES EXIST?

An employee who has suffered discrimination based on age may file a petition [1] with the National Human Rights Commission (the “NHRC”) pursuant to Article 30 of the NHRCA. [2] The NHRC will then investigate the claim and may issue a non-binding advisory opinion, and notify the Ministry of Employment and Labour (the “MOEL”) thereof. If the employer fails to comply with the NHRC’s advice without providing a justifiable reason, and if the discrimination involves substantial harm, [3] the MOEL, either at the employee’s request [4] or sua sponte, may order the employer to rectify the discriminatory behaviour. Failure to comply with such an order may result in an administrative fine of up to KRW 30 million. Moreover, discriminatory treatment in the context of recruiting or hiring may be subject to a criminal fine of up to KRW 5 million, [5] separately from the petition process through the NHRC.

Retaliation against an employee for reporting age discrimination is subject to potentially more serious penalties: imprisonment for up to two years or a fine of up to KRW 10 million.

HOW COMMON ARE CLAIMS?

According to the statistics provided by the NHRC in January 2014, after the enactment of the NHRCA in 2006, roughly 80,000 petitions were made.  Among them, 21% were discrimination-related petitions.  Approximately 7% of all petitions were regarding age discrimination.  2017, however, witnessed a decrease – approximately 3.6% of all discrimination-related petitions that year were regarding age discrimination. In 2022, about 8.1% of discrimination-related petitions were about age discrimination.

Since the implementation of the AEPA, over the first 5 years (2009-2013) an average of 157 petitions regarding age discrimination were filed annually, which is more than double the numbers filed in 2008.  In 2022, 165 petitions regarding age discrimination were filed.

WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?

The most common type of petition filed with the NHRC is for discrimination claims involving recruitment and employment, while petitions regarding discrimination in other areas such as transfer, promotion and education have been relatively small in number. Although not covered by the AEPA, age-discrimination petitions in non-employment areas have seen a considerable increase with 17 cases in 2008, and 44 in 2012.  Continuing this trend, 36 age-discrimination petitions in non-employment areas were filed in 2021.

ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?

The AEPA enumerates several justifications for policies and practices that otherwise might constitute unlawful age discrimination, namely:

• Where a certain age limit is inevitably required in light of the nature of the relevant duties;

• Where compensation and benefits are differentiated based on length of service;

• Where a retirement age is set by an employment contract, rules of employment, or CBA, pursuant to the AEPA or other laws;

• Where support measures are taken to maintain and promote the employment of a certain age group pursuant to the AEPA or other laws.

RETIREMENT AGES

An employer’s internal retirement age is highly significant in Korea, because it is extraordinarily difficult to involuntarily terminate employees prior to their reaching the mandatory retirement age set by company policy.  The AEPA expressly states that when an employer sets a retirement age for employees, the employer must set the age no lower than 60 years of age. If an employer sets the retirement age lower than 60 years it is deemed extended to 60 years. This mandatory floor for companies retirement ages has had a significant impact on the country’s labour sector, as many companies had previously set their retirement age in the mid to late 50s. Many of the top corporations in Korea responded by adopting or attempting to adopt a wage-peak system as a way of mitigating the burden of paying employee salaries to workers who otherwise would have been required to retire.  A wage-peak system involves applying regular salary reductions – instead of raises – to employees after they reach a certain age, for the remainder of their service until reaching the retirement age. 

The introduction of wage-peak systems has been a matter of significant controversy and opposition by labour unions and workers organisations, and the legal question of whether such a policy requires collective employee consent has been definitively resolved by a 2017 Supreme Court decision that concurred with the 2016 Guidelines from the Ministry of Employment and Labor in holding that a company’s adoption of a wage-peak system is an adverse change requiring employees’ majority consent.[6]

INTERESTING CASES

On May 26, 2022, the Korean Supreme Court held that the wage-peak system of the Korea Electronics Technology Institute was a form of illegal age discrimination. However, the Court left open the possibility that wage-peak systems may be justified by their particular circumstances, and explained the factors that should be taken into account in evaluating any justifying circumstances. [7] The major question now is how the courts will apply this standard to other wage-peak systems, in particular those that were established in response to the amendment of the AEPA (effective 2016) which required companies to increase their mandatory retirement ages to 60. Since the Supreme Court’s 2022 decision, at least one case has been decided in which the courts found that a wage-peak system was justified based on the circumstances, including the fact that it was adopted in response to the 2016 amendment of the AEPA.

Footnotes

[1] A petition must be filed within 1 year from the date the claim has arisen. (NHRCA, Article 32(1))

[2] AEPA, Article 4-6(1).  So, the agency who initially determines matters relating to age discrimination is the NHRC, even if it is relating to the employment and labour issues.

[3] “Substantial discrimination” refers to situations including discrimination against many people, repeated discrimination, and intentional non-compliance. (AEPA, Article 4-7(1))

[4] Such request has to be made within 6 months from the date of the NHRC’s advisory opinion.  (AEPA, Enforcement Decree, Article 4 (2))

 [5] AEPA, Article 23-3(2).  Due to the dual liability provision, not only the person responsible for such discrimination (in many case the representative and the relevant manager) but also the company will be liable by fine. (AEPA, Article 23-4)

 [6] Ministry of Employment and Labour Guideline on the Interpretation and Implementation of Work Rules (Jan. 22, 2016); Case No. 2017da209129 (Sup. Ct. May 31, 2017).  Adopting a wage-peak system typically requires amendment of existing work rules or rules of employment of a company.  Work rules may be amended by a company through consultation with employees.  If such amendment is considered adverse to employee’s interests however, the company generally must obtain the majority consent of those affected employees, except for a case where those changes are “reasonable in accordance with established social norms”.  Whether adoption of a wage-peak system is an adverse change requiring employees’ consent, and even so, whether it may fall within the limited “reasonable in accordance with established social norms” exception were, until recently, matters of significant controversy in Korea.

[7] Case No. 2017da292343(Sup. Ct. May 26, 2022).