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Age Related Notice Periods Discriminatory

Meredith Hurst Wednesday, January 27, 2010

ECJ finds age-related notice periods age discriminatory


In Kucukdeveci v Swedex GmbH & Co the ECJ held that a German law providing that employment before the age of 25 is disregarded when calculating service-related notice periods breached the EU Equal Treatment Directive (2000/78).

The Court also held that the prohibition on age discrimination in the Directive is a specific application of a general principle of European Union law so that, even in a dispute between two individuals, the national court must ensure that this protection is effective.

K, who had been employed by Swedex since 1996 when she was 18, was dismissed in 2006. Under German law, periods of service completed before the age of 25 are not taken into account when calculating the statutory notice period. Thus, Swedex calculated the notice period as if K had only been employed for 3 years. K disputed this before the German Labour Court on the basis that the German Law setting out statutory notice periods was age discriminatory and must be disapplied. The Higher Labour Court made a reference to the European Court of Justice asking whether the provision breached EU law.

The ECJ held that the German law afforded less favourable treatment to employees who start their employment before the age of 25 and thus contained a difference of treatment of the ground of age contrary to Article 2(2)(a) of the Directive. The Court then considered whether this treatment could be objectively justified under Article 6(1). It decided that affording employers 'greater flexibility in personnel management by alleviating the burden on them in respect of the dismissal of young workers, from whom it is reasonable to expect a greater degree of personal or occupational mobility' was a legitimate aim. However, the legislation was not an appropriate means of achieving this aim, as it applied to all employees who joined the undertaking before the age of 25, whatever their age at the time of dismissal. The Court noted that the legislation affects young employees unequally. Those who start work early after little or no vocational training are affected, whereas those who start work later after a long period of training are not.

The ECJ went on hold that, although it had consistently held that a Directive cannot impose obligations on an individual and therefore cannot be relied on against an individual, K could rely on the obligations in the Directive in her claim against Swedex, another legal individual. The ECJ, relying on Mangold v Helm (Brief 803), negotiated this problem by holding that principle of non-discrimination on the grounds of age in the Directive is a specific application of the general principle of equal treatment in European law. As such, it is for the national courts to ensure the full effectiveness of that law, disapplying if need be any principle of national law contrary to that principle that cannot be interpreted in accordance with the Directive.

The decision could mean the way that the basic awards for unfair dismissal and redundancy are calculated under UK law, based on age during each year of service, is also unlawfully age discriminatory. While the Government might be able to show a legitimate aim, such as accommodating the greater flexibility of younger workers or improving protection for older workers, the question of proportionality still remains.

Source: Incomes Data Services Ltd