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BAG: early retirement provisions in the collective agreement discriminatory against women may

a tariff system under which the allowance shall be paid soon the recipient of the service early retirement pension claim may discriminate against women and, therefore, acc. § 7 para 2 AGG invalid. Because as far as women already at 60 -, three years more than men - can take early retirement, they get less long transition money. The collective bargaining parties can overcome this disadvantage, however, by providing for the shorter duration of financial compensation.

The Case::
The applicant, born in 1946, retired in 2005 from her employment with the defendant. Under the applicable collective agreement on the employment relationship, they moved into after the end of the employment relationship for a year supply services ("transitional allowance").

ends after the collective bargaining arrangements the pension relative to the date on which you can take the recipients of the transitional allowance early retirement pension entitlement. Precisely this was the applicant in the year in 2006, when she namely its 60th Years of age.
By its action sought by the applicant, addressed as male pensioners to be, say, the allowance until the age of 63 Age to obtain. The Labour Court dismissed the action, instead gave her the LAG. On appeal the defendant raised the BAG on the decision of the LAG and referred the case back.

The reasons:
The BAG was that it might not even be a final decision on whether the Tarifegelung disadvantage women because of their sex and therefore acc. § 7 paragraph 2 of AGG was ineffective.
women and men are treated differently with regard to transitional allowance, for certain women born between gem. § 237a paragraph 1 SGB VI after the age of 60 Year of life, not just the age of 63 take early retirement.
establish true the collective agreement in respect to the statutory pension rights and can but - according to the BAG - not in itself justify the different treatment of men and women.
The collective bargaining parties could, however, requested to eliminate the discrimination of women affected by providing for the shorter duration of financial compensation.
Whether the tariff benefits are appropriate in this case, reduce the disadvantage of the shorter reference period, the LAG has not been tested. The matter was therefore referred back to the LAG can make up for this exam.
(BAG, decision of 15.02.2011, AZ: 9 AZR 584/09)