Manifestations of age discrimination and remedies

Concept of discrimination

The definition of discrimination is stipulated in the Law of the Republic of Lithuania on Equal Treatment.
Discrimination means any direct and indirect discrimination, harassment, instruction to discriminate on grounds of sex, race, nationality, citizenship, language, origin, social status, belief, convictions or views, age, sexual orientation, disability, ethnic origin or religion.
Based on this definition:

• direct age discrimination means any situation where one person is treated less favourably than another is, was or would be treated in a comparable situation on grounds of age, except for statutory restrictions on grounds of age where it is justified by a legitimate aim and the means of achieving that aim are appropriate and necessary;
• indirect age discrimination means an act or omission, a legal provision or an assessment criterion, an apparently neutral provision or practice that formally are the same but their implementation or application results, or may result, in de facto restrictions on the exercise of rights or extensions of privileges, preferences or advantages on grounds of age, unless that act or omission, legal provision or assessment criterion, provision or practice is justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Manifestations of age discrimination in employment relationships

Gender equality of employees and their non-discrimination on other grounds is stipulated in the Law on Equal Treatment and the Labour Code of the Republic of Lithuania. These laws provide for the obligation for employers to implement the principles of gender equality and non-discrimination on other grounds. This means that, in all cases of the employer’s relationship with employees, direct and indirect discrimination, harassment, sexual harassment, instruction to discriminate on grounds of sex, race, nationality, citizenship, language, origin, social status, belief, convictions or views, age, sexual orientation, disability, ethnic origin, health condition, marital and family status, membership of a political party, trade union or association, religion (except for the cases when the employee is employed with a religious community, association or centre, provided that the requirement for the employee regarding their religion, belief or convictions is genuine, legitimate and justified, having regard to the ethos of the religious community, association or centre), intention to have a child, also due to the fact that the employee exercises or exercised the rights provided for in this Code and due to circumstances unrelated to the employee’s professional qualities or on other statutory grounds are prohibited.
While specifying the aspects of employment relationships in relation to which the employer must implement the principles of non-discrimination on the ground of age or on other grounds, the above laws also suggest when and what aspects of the employment relationships may take the form of age discrimination:

• recruitment that does not follow equal selection criteria and conditions (i.e. publication of job advertisements that indicate, alongside professional requirements, the requirement for the candidate’s age, the age limit or age groups (e.g. ‘we expect candidates to be aged between 25 and 45’, ‘we invite you to join a young, dynamic, venturesome team’; during a job interview, excessive emphasis is placed on or concerns are expressed over the candidate’s age);
• creation of unequal working conditions, opportunities to improve qualifications, to pursue professional development, retrain, acquire practical work experience, as well as provision of unequal privileges (e.g. restrictions on improvement of qualifications, training, promotion, on duties and responsibilities for older employees at work; lack of possibilities to adapt the workplace or working conditions to the employee’s deteriorated health condition, justifying changes in health by the employee’s older age);
• application of unequal criteria for work evaluation and dismissal from work (e.g. only young employees’ good performance is noticed, whereas older employees’ good performance is accepted as a common phenomenon unworthy of additional stimulation; more attention is paid to criticism of older employees’ performance when deviating from standard performance; pressure is exerted to leave before reaching the age of old-age pension; employees are unjustly dismissed);
• unequal pay for equal work or for work of equal value (e.g. older employees are seen as being unworthy of investment, whereas young employees are paid higher wages, including wages in kind, i.e. providing a variety of additional means for their personal use);
• failure to take measures to ensure that an employee at the workplace is not subjected to harassment, sexual harassment and instructions to discriminate, also to prevent persecution and to protect from adverse treatment or adverse consequences if the employee files a complaint about discrimination or participates in discrimination proceedings (e.g. formation of an image of the employee within a team as being passive, unproductive, unable to adapt to new developments and unwilling to learn; lack of respect in employment relationships; reluctance to share information or to cooperate; intolerance towards clients; pressure to leave before reaching the age of old-age pension; unjustified dismissal).

Remedies for violations of equal opportunities and non-discrimination

Administrative procedure

Lithuania has in place several different remedies for violations of individuals’ equal opportunities and non-discrimination. One of them is filing of a complaint with the Office of the Equal Opportunities Ombudsperson. A person who considers that their equal opportunities have been violated has the right of recourse to the Equal Opportunities Ombudsperson. Recourse to the Equal Opportunities Ombudsperson is without prejudice to the possibility of defending their rights in court. A complaint may be filed within 3 months after the contested action was carried out or transpired. A complaint filed after this time limit is not examined, unless otherwise decided by the Equal Opportunities Ombudsperson. Having conducted an investigation into possible discrimination in an employment relationship, the Equal Opportunities Ombudsperson can take the following decisions:

• Recommendation. The Ombudsperson may refer to a person or an institution proposing to change the actions that violate equal opportunities. This includes both recommendations to discontinue unlawful practices and a proposal to amend a legal act (or a part of it) in a way that ensures equal opportunities for all. As a rule, infringers take the Ombudsperson’s observations into account in good faith, with around 90% of the recommendations being complied with;
• Warning. The Ombudsperson may issue a warning in case of a violation of equal opportunities. A warning, just like a recommendation, is often followed by a press release thus informing the public about the mistreatment by the infringer. This affects the reputation of the person or organisation that infringed the law;
• Referral to court. Having conducted the investigation, the Ombudsperson has the right to refer to an administrative court requesting to investigate whether the assessed regulatory acts conform to the provisions of equal opportunities legislation;
• Administrative fine. The Ombudsperson may initiate administrative proceedings which may result for the infringer in a fine in the amount of EUR 40 to EUR 560 or, for a repeated offence, a fine in the amount of EUR 560 to EUR 1 200. The Equal Opportunities Ombudsperson only exercises this right in exceptional cases when it is convinced that cooperation and public education are more effective measures;
• Transmission of information to law enforcement institutions. Having detected possible elements of a criminal act in the circumstances presented in the complaint, the Ombudsperson has the right to transmit this material to an investigative body or a prosecutor;
• Termination of the investigation. The Ombudsperson may terminate the investigation if circumstances change during the investigation resulting in discontinuation of discriminatory actions (amendment of legislation), there is a lack of objective data on the violation, etc.;
• Declaration of the complaint unfounded. If the violation is not confirmed, the Equal Opportunities Ombudsperson may declare the complaint unfounded.

Judicial procedure

A person who has suffered discrimination on grounds of age has the right to claim compensation for material and non-material damage from the guilty persons in accordance with the procedure laid down by the law. The Labour Code provides that each party to an employment contract must compensate for any material damage, including non-material damage, caused through its fault by a violation of its employment obligations to the other party.
In proceedings concerning gender equality and non-discrimination on other grounds in an employment relationship, where an employee indicates the circumstances suggesting that the employee has suffered discrimination, the employer bears the burden of proving that there has been no discrimination.
In proceedings concerning pay discrimination, pay for work means remuneration or any other consideration, including consideration in cash or in kind, which an employee receives for their work directly or indirectly from their employer.
According to the Constitution of the Republic of Lithuania, justice in the Republic of Lithuania is administered only by courts. The Code of Civil Procedure provides that disputes arising out of employment and other private legal relationships fall under the jurisdiction of courts in accordance with the procedure established by the Code of Civil Procedure. In cases provided for by the law, a mandatory preliminary out-of-court dispute settlement procedure may be established. The Labour Code provides that labour disputes on rights are examined by:

• a labour dispute commission;
• a court.

These authorities have the power to restore justice by awarding damages and, in the case of unlawful dismissal from work, to return the claimant to work.
Labour disputes on rights may also be examined by commercial arbitration in accordance with the Law of the Republic of Lithuania on Commercial Arbitration if the parties to a labour dispute agree to such examination later than the dispute arose.
It should be noted that, in accordance with the Code of Civil Procedure, where a person refers to court disregarding the preliminary out-of-court dispute settlement procedure, the court will refuse to accept the claim or will leave it unheard and will instruct the claimant as to their right to avail of the out-of-court dispute settlement procedure. In this case, the date of referral to court is considered to be the date of referral to a labour dispute examination authority if the person referred to that authority no later than within 14 days after the service of a court order on them.
Thus, an employee who considers that an employer has violated their rights as a result of non-fulfilment or improper fulfilment of labour law provisions or mutual agreements and seeks compensation for material and/or non-material damage may refer to a labour dispute commission by submitting an application to resolve a labour dispute on rights. The request must be submitted in writing (including by email using an electronic signature) to the labour dispute commission under a territorial division of the State Labour Inspectorate (SLI) within the territory of which the employee’s workplace is located. The employee must submit to the labour dispute commission the application to resolve a labour dispute on rights within 3 months or, in cases of unlawful suspension, unlawful dismissal from work and breach of a collective agreement, within 1 month of when they became aware, or should have become aware, of the violation of their rights. An exceeded time limit for submitting an application may be reopened by a decision of a labour dispute commission. By clicking on a text highlighted in blue, you can access the contact details of the territorial divisions of the SLI as well as a model form of an application to a labour dispute commission.
Legal persons, other organisations and their divisions which have, in accordance with a legal act regulating their activities, the defence and representation in court of persons discriminated against on a particular ground as one of their activities may, on behalf of the person discriminated against, represent them in judicial or administrative procedures in accordance with the procedure laid down by the law.
Information prepared on the basis of recommendations of the Office of the Equal Opportunities Ombudsperson

Employees’ rights

Article 29 of the Constitution of the Republic of Lithuania (hereinafter referred to as the Constitution) stipulates that all persons are equal before the law, courts, and other state institutions and officials. Furthermore, human rights may not be restricted; no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views.
The Law of the Republic of Lithuania on Equal Treatment (hereinafter referred to as the Law) has been adopted with a view to implementing the provisions of the above Article of the Constitution.
Article 7 of the Law regulates the employer’s duty to implement equal treatment in the workplace and in the civil service. In implementing equal treatment, the employer must, irrespective of sex, race, nationality, citizenship, language, origin, social status, belief, convictions or views, age, sexual orientation, disability, ethnic origin or religion:
1) apply the same selection criteria and conditions when employing or recruiting to the civil service, except for the cases specified in points 4 and 7 of Article 2(9) of this Law;
2) provide equal working and civil service conditions, access to improvement of qualifications, vocational training, retraining, acquiring practical work experience, as well as provide equal advantages;
3) apply the same criteria for assessing the work of employees and the performance of civil servants;
4) apply the same criteria for dismissal from work and from the civil service;
5) pay equal pay for equal work or for work of equal value;
6) ensure that a person seeking employment, an employee or a civil servant is not subjected in the workplace to harassment, sexual harassment or to instructions to discriminate;
7) take measures to prevent persecution of employees, civil servants who file a complaint concerning discrimination, participate in discrimination proceedings or report discrimination, their representatives or any persons who give evidence or provide clarifications regarding discrimination and to protect them from adverse treatment or adverse consequences;
8) take appropriate measures for conditions to be created for people with disabilities to get a job, work, pursue a career or learn, including the provision of appropriate working conditions, provided that the duties of the employer are not disproportionately burdened by said measures;
9) take measures to ensure that an employee or a civil servant is not subjected to discrimination in the workplace on the grounds of granting of paternity leave, childcare leave, unpaid leave for nursing or caring for a sick family member or a person living with the employee or the civil servant or establishment of flexible working-time arrangements.
The provisions of the above legal acts are implemented by the Labour Code of the Republic of Lithuania (hereinafter referred to as the LC). So what rights does an older employee have when taking up employment or working under an employment contract?

• Right to the principle of equality of subjects of labour law regardless of their sex, sexual orientation, race, nationality, language, origin, social status, belief, […] marital and family status, age, convictions or views […] (Article 2(1) of the LC).
• Right to implementation of the principles of good faith and cooperation in an employment relationship, which means that employers and employees must act in good faith, cooperate, not abuse the law, not violate the rights or legally protected interests of other persons, etc. (Article 24 of the LC).
• Right to employees’ gender equality and non-discrimination on other grounds. It should be noted that any direct and indirect discrimination, harassment, sexual harassment or instruction to discriminate on grounds of sex, race, nationality, language, origin, social status, age, etc. are prohibited (Article 26(1) of the LC). To ensure these rights, the employer must comply with the duties provided for in Article 7 of the Law and transposed to Article 26(2) of the LC, such as: applying equal selection criteria and conditions when hiring employees, using equal work evaluation criteria and equal criteria for dismissal from work, paying equal pay for equal work and for work of equal value, etc.

It should be noted that when hearing cases of gender equality and non-discrimination on other grounds in an employment relationship, where an employee has indicated the circumstances from which it may be presumed that the employee has experienced discrimination, the employer bears the burden of proof that there has been no discrimination (Article 26(5) of the LC).

• Right to private life and to the protection of personal data (Article 27 of the LC).
• Right to respect for the employee’s family obligations. It should be noted that, in the cases provided for in the LC, employees’ requests related to the fulfilment of their family obligations must be considered and given a reasoned written response to by the employer (Article 28(2) of the LC).
• Right to professional development. The employer must take measures to improve the qualifications and professionalism of employees and to increase their ability to adapt to changing business, professional or working conditions. For this purpose, in the cases and in accordance with the procedure established in the LC, labour law provisions or agreements between the parties, the employer creates conditions for the employee to learn, improve qualifications and pursue professional development (Article 29(2) of the LC).
• Right to protection of honour and dignity. The employer must create a work environment in which an employee or a group of employees will not be subject to hostile, unethical, demeaning, aggressive, insulting or offensive actions which encroach on the honour and dignity of an individual employee or a group of employees or the physical or psychological integrity of an individual or which are aimed at intimidating, belittling or pushing an employee or a group of employees into an unarmed or powerless situation (Article 30(1) of the LC). The employer takes all necessary measures to ensure the prevention of psychological violence in the work environment by publishing information on such measures in the ways that are accustomed at the workplace and takes active steps to provide assistance to persons who have experienced psychological violence in the work environment.
• Right to terminate an employment contract on the ground of voluntary retirement and to receive severance pay. An employee working under an open-ended employment contract who has reached the age of old-age pension and has acquired the right to a full old-age pension while working for this employer has the right to request in writing the termination of his employment contract in accordance with Article 56(1)(4) of the LC by giving a notice to the employer at least 5 working days in advance. On termination of the employment contract on this ground, the employee must be paid severance pay in the amount of two times their average remuneration or, for employment relationships of less than 1 year, severance pay in the amount of their one average remuneration.
• Right to keep a job if a superfluous job function is performed by several employees and only a part of them is dismissed. It should be noted that an employer has the right to terminate an employment contract in accordance with Article 57(1)(1) of the LC if the job function performed by an employee becomes superfluous for the employer due to changes in the organisation of work or for other reasons related to the activities of the employer. If, however, there are several employees performing the superfluous job function and only a part of them is dismissed, the employer should then assess the qualifications of the employees performing the superfluous job function. If they have the same qualifications, the employer should then set up a selection board and assess the employees’ right of priority to keep a job according to the hierarchical structure provided for in Article 57(3) of the LC. The right of priority to keep a job must be given to an employee who has been injured or has contracted an occupational disease at that workplace, etc., according to points 1 to 5 of Article 57(3) of the LC. According to the fourth criterion, the right of priority to keep a job applies to those employees who have no more than 3 years left until the age of old-age pension. This means that if, based on the above hierarchical structure, other employees do not have the right of priority to keep a job according to criteria 1-3, then the right of priority to keep a job will be given to the employee who has not more than 3 years left until the age of old-age pension.
• Right to a longer period of notice for termination of an employment contract on the employer’s initiative without any fault on the part of the employee, where the person has 2 to 5 years left until the age of old-age pension. As a general rule, an employer wishing to terminate an employment contract on its own initiative without any fault on the part of the employee in accordance with Article 57 of the LC must give a written notice to the employee 1 month in advance or, for employment relationships of less than 1 year, 2 weeks in advance. These periods of notice are doubled for employees who have less than 5 years left until the age of old-age pension and tripled for employees who have less than 2 years left until the age of old-age pension.

Employees’ possibilities to choose flexible forms of work

The employment relationships regulated in the Labour Code of the Republic of Lithuania (hereinafter referred to as the LC) should be implemented by adhering to the principles of good faith and cooperation, therefore, employers and employees must always act in good faith, cooperate and not abuse the law. The same applies when concluding an employment contract or changing the terms of employment.
An employment contract is an agreement between an employee and an employer under which the employee undertakes to perform a job function under the subordination and for the benefit of the employer and the employer undertakes to pay remuneration for this. It should be noted that an employment contract, i.e. an agreement between an employee and an employer, should be concluded of the free will of both parties, therefore, the employee has the right to negotiate with the employer about all the terms of the employment contract or, in the cases provided for in the LC, request changes to the working conditions, etc.
Therefore, what options are available to older employees as regards flexible forms of work that are best suited for them?
Agreement on part-time work (Article 40 of the LC)
It should be noted that when concluding or implementing an employment contract, part-time work can be agreed on, i.e. fewer working hours than the standard working hours applicable to an employee according to their job activities, e.g. 20 hours per week, etc., may be agreed instead of 40 hours per week. Agreeing on part-time work may reduce the number of working hours per day or working days per week/month, or both.
An employee who works part-time has the right to request the employer, no more than once every 6 months (unless agreed otherwise), to change part-time working arrangements, and the employer must consider this request and provide the employee with a reasoned decision within 10 working days.
An employee who has been in an employment relationship with the employer for at least 3 years has the right to submit a written request to temporarily work part-time according to the procedure laid down by the LC. The employer may refuse to satisfy the employee’s request to temporarily work part-time only for valid reasons.
It should be noted that for employees working part-time, such work does not lead to restrictions in determining annual leave entitlement, calculating the length of employment, promoting, or improving qualifications and does not limit the employee’s other labour rights as compared to employees who perform the same or equal work under full-time employment conditions, taking into account the length of employment, qualifications and other circumstances. Remuneration for part-time work is paid in proportion to the time worked or the work performed, as compared to work performed under full-time employment conditions.
Remote work (Article 52 of the LC)
After quarantine, one of the most relevant forms of work organisation remains remote work, when an employee performs all or part of their job functions during all or part of the working time remotely in an agreed place other than the workplace, while also using information technology, in accordance with the procedure agreed upon with the employer (teleworking).
Remote work is assigned at the request of the employee or by agreement of the parties. In assigning remote working arrangements or by agreement of the parties, the requirements for the workplace (if any), the work equipment provided to use for work, the procedure for providing them, and the rules for using the work equipment shall be set out in writing; the workplace division, department or responsible person whom the employee must report to regarding the work performed in the procedure established by the employer should also be indicated. If, while working remotely, the employee incurs additional work-related expenses, the employer must reimburse them. The specific reimbursement procedure is determined by agreement of the parties.
Remote work does not lead to restrictions in calculating the length of employment, promoting to a higher position, or improving qualification, and does not limit or encumber the employee’s other labour rights. The employer must create conditions for employees working remotely to communicate and cooperate with other employees working at the employer’s workplace and employees’ representatives and to receive information from the employer.
The LC provides for cases when an employer must satisfy an employee’s request to work remotely, unless it proves that, due to industrial necessity or specific organisation of work, this would lead to excessive costs, e.g. when the employee’s request, according to the conclusions of a healthcare institution, is based on the employee’s medical condition, disability or need to nurse/care for a family member or a person living with the employee, etc.
It should be noted that, unless otherwise provided, the employer establishes working-time arrangements for one, several or all the employees at the workplace. The employer chooses one of the following types of working-time arrangements:

• fixed duration of working days/shifts and number of working days per week;
• working-time arrangements using annualisation;
• flexible work schedule;
• split-shift working-time arrangements;
• individualised working-time arrangements.

Fixed duration of working days/shifts and number of working days per week is a type of working-time arrangements when the duration of a working day/shift and the number of working days per week remain unchanged. This is the most common type of working-time arrangements for administrative staff, e.g. 8?hour workday from Monday to Friday.
Annualisation is a type of working-time arrangements when the standard working hours for the entire reference period (which may not exceed 3 consecutive months) are completed within the reference period. This is the most common type of working-time arrangements for employees with a sliding work/shift schedule, e.g. an employee working according to a schedule 40 hours one week and 48 hours the next week, but it is important that the employee completes the total standard working hours for the entire reference period within the reference period. The total standard working hours for the reference period are calculated according to the weekly standard working hours of 40 hours (for those who work full-time), i.e. the number of calendar weeks in the reference period is multiplied by 40 hours (for those who work full-time), e.g. 17 weeks x 40 hours = 680 hours.
Flexible work schedule is a type of working-time arrangements when an employee must be present at the workplace during fixed hours of a working day/shift but is able to complete other hours of that day/shift before or after the fixed hours. It should be noted that the employer establishes the fixed hours of a working day/shift during which the employee must be present at the workplace and the employee decides when (before or after the fixed hours) the employer will complete the unfixed hours of the working day/shift. It should be noted that, with the consent of the employer, the unfixed hours of the working day/shift which were not worked may be moved to another working day.
Split-shift working-time arrangements is a type of working-time arrangements when work is completed within the same day/shift with a break to rest and eat which is longer than the established maximum length of the break for resting and eating, i.e. longer than 2 hours. For example, employees work for 4 hours, after which they have a 3?hour break to rest and eat, during which they can leave the workplace and then return to work for another 4 hours.
Individualised working-time arrangements. If an individualised working-time arrangement is selected that is not further regulated in the LC, the parties may agree on allocation of working time at their discretion, but without prejudice to the maximum working time and minimum rest period requirements.
It should be noted that the employer must satisfy a request for granting a working-time arrangement preferred by an employee when said is requested by an employee who is pregnant, who recently gave birth or who is breast feeding, an employee who is raising a child under the age of 8 or an employee who is a single parent raising a child under the age of 14 or a child with a disability under the age of 18 or when the employee’s request, according to the conclusions of a healthcare institution, is based on the employee’s medical condition or need to nurse/care for a family member or a person living together with the employee, unless this would lead to excessive costs for the employer due to industrial necessity or specific organisation of work.
Important! It should be noted that, pursuant to Article 137(3) of the LC, the employee has the right to request in writing that the employer grants unpaid time off to take care their personal matters, e.g. if an older person needs to visit a doctor, etc. In addition, the employer must grant unpaid time off to the employee if the employee’s request is related to family emergency in the event of illness or accident, when the employee must be directly involved.
In this case, it should be noted that the parties may also agree to move working time to another working day/shift, without prejudice to the maximum working time and minimum rest period requirements.