From 01.07.2017, employees who have reached the age of 50 at the time of their employment will no longer be subject to increased protection against dismissal (BGBI 37/2017). This “relaxation” of protection against dismissal for employees over the age of 50 was passed by parliament at the beginning of March.
The current provision of Section 105 (3b) ArbVG provides for greater protection against dismissal for employees over the age of 50 if they have already been employed or if they have been employed by the company for at least two years.
The purpose of the adopted amendment is to promote the recruitment of older employees in the event of a challenge to dismissal on grounds of social unlawfulness for employees who are over the age of 50 at the time of their recruitment by aligning the general protection against dismissal with that of younger employees.
If a dismissal is contested on the grounds of social unlawfulness or if the works council expressly objects to a dismissal and a social settlement is reached as a result, the age of the employee, who has already reached the age of 50 at the time of recruitment, is no longer to be given special consideration. Instead, the assessment must be carried out according to the same standards as for younger employees.
This aligns the general protection against dismissal with that of younger employees. However, the prohibition of discrimination still applies.
§ Section 105 (3b) last sentence ArbVG in the version of the Federal Law Federal Law Gazette I No. 37/2017 appliesto employees who are hired after June 30, 2017. Therefore, if the employment relationship was established before July 1, 2017, the increased protection against dismissal remains in place.
§ Section 105 (3b) ArbVG in the new version (Federal Law Gazette I No. 37/2017) reads:
“Circumstances pursuant to para. 3 no. 2 lit. a, which have their cause in the advanced age of an employee who has been employed for many years in the company or enterprise to which the company belongs, may only be used to justify the dismissal of the older employee if the continued employment is significantly detrimental to operational interests. In the case of older employees, the fact of many years of uninterrupted employment in the company or enterprise to which the company belongs, as well as the difficulties to be expected in reintegrating into the work process due to their advanced age, must be given special consideration both when examining whether a dismissal is socially unjustified and when comparing social aspects. This does not apply to employees who have reached the age of 50 at the time of recruitment. “