bAV: BAG decides ? no discrimination against women due to age limit

by Johannes Fiala, Lawyer (Munich), M.B.A. (Univ.Wales), M.M. (Univ.), Certified Financial and Investment Advisor (A.F.A.), EC Expert (C.I.F.E.), Banker (www.fiala.de )
Vesting period: The Betriebsrentengesetz (BetrAVG – German Company Pension Act) regulates the periods after which vesting occurs. Previously, one of the requirements was that the employee was 35 years old ? in the current version of the BetrAVG, an age of 30 years is sufficient.
BAG decision: The Federal Labor Court (Bundesarbeitsgericht, BAG) decided on October 18, 2005 (Case No. 3 AZR 506/04), as did all previous instances, that there was no discrimination against women. The plaintiff had unsuccessfully argued that, on average, women leave the workforce at age 29 to have children. This would make it impossible to acquire a company pension or to reach the age required for the entitlement.
Liability trap for employees: usually only a revocable subscription right is granted until the entitlement is reached in the case of employer-financed direct insurance. The employee should ensure that the subscription right is irrevocably granted from the time of vesting.
Insolvency risk: If the subscription right is incorrectly still designed to be revocable in the event of insolvency, the insolvency administrator can cancel the direct insurance. The employee then has a claim for damages due to breach of the employer’s duty of care ? However, he can regularly only file for bankruptcy. In economic terms, however, this only results in a claim in the amount of the proportionate bankruptcy quota.

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About the author

Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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