Age discrimination in the field of employment and occupation is governed at EU level by Directive 2000/78/EC on employment equality. This framework directive establishes the general rule on prohibition of age discrimination. In this respect, the directive complements the EU Charter of fundamental rights of the European Union, which establishes that any discrimination on grounds of age is prohibited.
The Directive classifies discrimination as direct and indirect. Direct age discrimination occurs where one person is treated less favourably than another in a comparable situation because of their age. Indirect age discrimination occurs when an apparently neutral criterion or practice puts a person of a particular age at a disadvantage compared with other persons in a comparable situation.
Direct age discrimination may take the form of age limits.
Age limits may be imposed for the commencement of a particular career, or at which an employment relationship terminates.
The directive limits the circumstances in which national laws of member states may permit employers treat employees differently on grounds of age.
Such difference in treatment is only allowed under the exception laid down in the EU directive, where the legislator or the employer are pursuing a legitimate aim and if the means of achieving that aim are appropriate and necessary.
This exception has been the subject of various judgments of the Court of Justice of the European Union (CJEU). Various national courts have referred to it questions on age limitations for guidance within the context of the EU directive.
Two recent referrals from the Italian and German courts consider the legal constraints surrounding age limits in employment.
The first referral dealt with an Italian law relating to on-call contracts, the characteristic of which was its flexibility, where the employer is not bound to provide any minimum working hours while the employee is not obliged to accept any work. Such contracts were offered to employees aged under 25 years of age or over 45, the latter was later extended to 55. The complainant, under 25, had been employed with Abercrombie & Fitch under one such contract.
When he reached the age of 25 his employment was terminated as he no longer satisfied the age limit of the on-call contract.
Advocate General Bobek delivered his opinion on this Italian law favouring access to employment of younger workers. He considered whether workers in different age groups are in a comparable situation in terms of access to employment and dismissal.
In coming to the conclusion that all age groups are competent to do the job and apply for the same position, he dismissed the argument that high youth unemployment means that younger workers are in a different situation than older ones.
While refraining from expressing a position on whether the Italian law was discriminatory, the Advocate General suggested that the Italian law is only compatible with the EU rules on employment equality if the national court determines that it can be justified under and pursues a legitimate aim linked to employment and labour market policy, and achieves that aim by means which are both appropriate and necessary.
A recent German case brought forward by a pilot against Lufthansa dealt with another challenge to the imposition of an age limit in employment. In terms of the conditions of his employment, the employment terminated two months after the employee’s 65th birthday.
The pilot was dismissed immediately upon turning 65 in line with EU law that imposes an age limit of 65 for pilots flying commercial aircrafts. The pilot sought reimbursement for those two extra months.
Although the CJEU considered that the age limit constitutes a difference in treatment based on age, it held that such difference in treatment is justified by the aim of ensuring civil aviation safety in Europe and therefore ruled that the age limit in question is valid. The court justified the age limit on the basis that physical capabilities diminish with age and such reduction could cause accidents. Therefore the court ruled that the age limit was proportionate to the aim of ruling out accidents caused by diminished capabilities.
These two cases will help further clarify whether direct age discrimination can be justified, both within the scope of national legislation and in light of European law.
Josette Grech is adviser on EU law at Guido de Marco & Associates.
jgrech@demarcoassociates.com