Age discrimination explained

An employer is not obliged to take into account professional experience acquired by an employee with another company in the same group of companies, the Court of Justice of the European Union has ruled. The application of such a criterion does not constitute discrimination on grounds of age even if, in individual cases, it affects the age at which certain employees benefit from a promotion, the Court affirmed.

EU law strictly prohibits discrimination against workers on the basis of age. Such discrimination is illegal whether it is direct or indirect. Indirect discrimination arises where a criterion which at face value appears to be neutral, is applied so as to place employees of a particular age group at a distinct disadvantage when compared with others. The employer must prove that the criterion being applied is objectively justified by a legitimate aim and that the means of achieving such an aim are appropriate and necessary.

A disagreement arose between Tyrolean Airways and its works council about whether periods of service completed by some employees with two other subsidiaries belonging to the same group of companies as the airline ought to be taken into account for placing workers in employment categories and for salary purposes. Tyrolean Airways argued that their collective agreement provides that an employee can only advance from one category to a higher one upon the completion of three years’ service as a member of the cabin crew. The employment contracts then stipulated that the date of commencement of employment refers to the date of commencement of employment with Tyrolean Airways and not with any other subsidiary of the same group.

The national court made a preliminary reference to the Court of Justice of the European Union, requesting guidance as to whether EU law prohibits a clause in a collective agreement which seeks to discard – for grading and remuneration purposes – professional experience acquired by employee with a subsidiary of the same group of companies as his employer.

The CJEU asserted that such a clause cannot be considered to be discriminatory on the basis of age. While such a clause did differentiate between employees, such a distinction cannot be said to be directly or even indirectly, based on age or on an event linked to age. The experience acquired by a cabin crew member with another airline in the same group of companies was not being taken into account, irrespective of the age of the particular employee at the time of his or her recruitment. The court conceded that it is possible that, in individual cases, the application of the criterion could mean that the time of advancement of certain employees from one employment category to a superior one, occurs at a later age than that of employees who were always employed with the same company and who garnered equivalent professional experience. This does not render the criterion being applied in the collective agreement discriminatory.

Since its inception, the European Union has always regarded the fight against any form of direct or indirect discrimination as one of its most important objectives. The Court of Justice of the European Union has always been willing, through its judgments, to contribute to this fight by often interpreting the law so as to condemn measures which, though apparently neutral, are applied in ways to hinder an individual from living his or her social or professional life to the full.

As this ruling proves, however, the court is not willing to condemn innocuous business decisions which do not in any way, whether directly or indirectly, discriminate against an individual.

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Dr Vella Cardona is a practising lawyer and a freelance consultant in EU, intellectual property, consumer protection and competition law. She is the deputy chairman of the Malta Competition and Consumer Affairs Authority as well as a member of the National Commission for the Promotion of Equality.