This summary of age discrimination law in Hungary has been prepared by Bozsonyik-Fodor Legal, the Ius Laboris member for Hungary: www.bozsonyikfodor.com.

OVERVIEW

Hungary has implemented the following EU directives:

• Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards to employment, vocational training and promotion, and working conditions;

• Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security;

• Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes;

• Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood;

• Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex;

• Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin;

• Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation;

• Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services.

The Equal Treatment Authority (“the Authority”) was established by Act CXXV of 2003 on equal treatment and the promotion of equal opportunities. The Authority started its work on the 1st February 2005. It is an independent organisation, which was set up by the Hungarian Government to receive and deal with individual and public complaints of unequal treatment and to implement the principles of equality and non-discrimination. The Authority was merged into the Office of the Fundamental Rights Commissioner on 1 January 2021 and currently the Ombudsman is in charge with safeguarding equal treatment principles.

WHO'S COVERED?

The principle of equal treatment must be observed by:

• The Hungarian state;

• Local and minority governments and all bodies thereof;

• Organisations exercising powers as authorities;

• Armed forces and policing bodies;

• Public foundations, public bodies and employer and employee representative bodies;

• Organisations performing public services;

• Institutions of elementary and higher education (hereinafter collectively: educational institutions);

• Persons and institutions providing social care and child protection/welfare services;

• Museums, libraries and elementary educational institutions;

• Voluntary mutual insurance funds and private pension funds;

• Entities providing health care;

• Parties;

• Budgetary organs that do not belong to any of the above.

In addition, the following persons shall observe the principle of equal treatment in respect of the relevant relationship:

• Those who make a proposal to persons not previously selected to enter into contract or invite such persons for tender;

• Those who provide services or sell goods at their premises open to customers;

• Self-employed persons, legal entities and organisations without a legal entity receiving state aid, in respect of their relationships established in the course of their utilisation of such a state aid, from the time when the state aid is utilised until the competent authorities can audit the utilisation of the state aid in accordance with the applicable regulations; and

• Employers in respect of employment relationships and persons entitled to give instructions in respect of other relationships aimed at employment and relationships directly related thereto.

The scope of the regulation excludes:

• Family law relationships;

• Relationships between relatives;

• Relationships directly connected with the activities of the religious life of the churches; and

• between the members of associations, legal entities and organisations without a legal entity  in connection with the relationships related to membership, except for the establishment of membership.

This provision cannot be applied at:

• The establishment and cancellation of membership relationship; and

• The relationship of parties with the exception of characteristic of political and other opinion

WHAT ENFORCEMENTS/REMEDIES EXIST?

Each person has right to lodge a complaint to the Ombudsman where he or she has not been treated equally. The claimant has to inform the Ombudsman that it has suffered disadvantage and it has to specify the protected characteristic that the complaint is based on.

Alternatively, at the victim's choice, a civil lawsuit may be commenced for the infringement of personal rights or an employment lawsuit may be launched, when the infringement occurred in connection with an employment relationship. It is also possible to launch a complaint to the employment office or to the consumer protection authority.

WHAT DECISIONS CAN BE MADE BY THE OMBUDSMAN?

If the Ombudsman has established that the principle of equal treatment has been violated, they may:

• Order that the situation constituting the violation of law should be stopped;

• Prohibit the continuation of the violation of law;

• Publish its decision establishing the violation of law;

• Impose a fine from 50,000 to 6 million Hungarian Forint (HUF), and/or;

• Decide on the procedural cost in a way that it must be covered by the offending party

• Apply further legal consequences defined by the Act

Damages can only be awarded by the court.

HOW COMMON ARE CLAIMS?

The last annual report available is from 2021. In 2021 the Ombudsman received 324 complaints related to equal treatment. The Ombudsman dealt with altogether 462 cases (some of them also from last year). 26 decisions were adopted when infringement was declared, and fines were imposed as a sanction in 5 cases. From these infringements most were disability-related infringements in the area of access to services.

WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?

Terminating employees who are (i) on an indefinite contract; or (ii) 5 years from the retirement age may be challenging for employers. Most cases are brought by senior employees who have not been hired or have been dismissed because of their age.

In some cases, employers also run into issues with setting out that a candidate be a certain age in its job advertisements.

When an employee has a protected characteristic, he or she should only have a probable cause to believe that an infringement has occurred. The burden of proof is on the employer and the employer must prove that the circumstances alleged by the employee were non existing and that the requirement of equal treatment was maintained. This may be particularly challenging in case of termination situations when the employer does not have to provide a reason for the action.

ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?

Yes, as discussed above.

RETIREMENT AGES

Although the employer can never force an employee to retire, the Hungarian Labour Code considers an employee who: (i) has reached the age necessary for retirement (generally 65 years old, depending on the date of birth); and (ii) has the necessary service period (at least 20 years) a "retired" person, even if the employee has not actually retired.

These employees may be dismissed without any justification and will not be entitled to severance payment.

Women with a service period of at least 40 years are also entitled to retirement regardless of her age.

INTERESTING CASES

There have been a few interesting cases over the last few years:

• A regional branch of a state financial institution's civil servants approached the Authority with an age discrimination claim that only middle aged graduated civil servants were part of the redundancy carried out by the employer in 2004. In a circular sent to the local authorities, 90% of 164,000 HUF was set as the minimal saving per capita from the reduction. The Authority examined the principle of lay-offs and saw that the average sum was set in the circular with which all categories of civil servants could be affected. Investigation was carried out to see if certain age groups were discriminated against but the data did not show this. Although all the dismissed civil servants were over 31, the proportion of people between 31 and 60 was 82.9% in the staff. The complaint was therefore, dismissed.

• A woman brought an age discrimination claim because her job application for cleaner at a state institution was refused because she was under the age of 18. She was informed that her application had been refused because people under 18 could not get an entrance card in that building. The Authority initiated proceedings against the employer but during this time the parties agreed on a Settlement Agreement, in which an interview for a job vacancy at where she lived would be available to the individual if she was still unemployed when it became available.

• An individual applied for a warehouseman and shelf-filler position in a business company in 2011. In the conditions provided by the company, it stated that applicants should be between 20 to 30. The claimant, who was over 30, applied for the role on four occasions but was never invited for an interview. The Authority held that this requirement was not objective and prohibited the employer from imposing the age restriction.

• In 2015 a petitioner complained that a transportation company refused to support his training for driving licence because of his age (he was over 60 years). In the course of the procedure the company stated that they did not discriminate the applicant because of his age. The real ground of the rejection was that he had failed both the psychological test and the test drive. They also added that they employ several drivers over the age of 60. The petitioner stated that the company told him expressly that it was not possible to train him on account of his age. The parties eventually entered into a Settlement Agreement whereby the petitioner would have to acquire a driving licence so that he can drive a lorry, after which, he could apply to the company and will be offered the same terms and conditions of employment as anyone else.

• In 2016, a petitioner approached the Authority with the complaint that one of the selection criteria specified in the job advertisement posted on an online job side was that the applicant has to be between the ages of 20 to 35. He was 44 and applied for the position but was not hired because of his age. The company explained that the age requirement was specified because of the physical difficulty of the work. Furthermore the company said that he lacked the required skills for the role. He also failed to address the question in the vacancy notice and to specify a salary demand. The role was offered to a 21 year old applicant. The Authority rejected to company’s arguments on the basis that there was no reasonable explanation why a person older than the age specified in the job advertisement would not be suitable to move and lift fruit crates. The Authority also rejected the company’s argument that the thought of the age range were only a recommendation because it was listed among the precondition for filling the position. The Authority found in favour of the petitioner and forbid the company from future manifestation of the infringing conduct and ordered the publication of its legally binding decision on its website.

  An employee filed a lawsuit against his employer for unlawful termination. The ground for the termination was reorganization. The employee claimed that the reason for his dismissal was on the grounds of his age and the and length of service. The company had to prove that the employee was made redundant as a result of a reorganisation and the elimination of his position and that there was  no connection between the employee’s age and the termination of his employment.