The Supreme Court affirmed the High Court's ruling and found that dismissal of young workers because they turn 18 is not contrary to the prohibition in the Employment Equality Directive against discrimination due to age.

The case concerned a young man who had worked with Irma since he was 16, but who was dismissed when he turned 18. The reason for the dismissal was that, when turning 18, he was to receive a much higher hourly pay. The dismissal was in accordance with section 5 (5) of the Anti-Discrimination Act implementing the Employment Equality Directive. The section provides that young people under 18 are not covered by the Act if the employment is covered by a collective agreement containing rules on payment of young people under 18. 

HK claimed that the dismissal was contrary to the Directive and commenced legal proceedings against Irma and the Ministry of Employment claiming that the rules of the Anti-Discrimination Act are contrary to the Directive's prohibition against discrimination. 

In addition, Irma claimed dismissal of the proceedings as it was of the opinion that it could not be held accountable for insufficient implementation of the Directive.

Grounds and conclusion of the High Court

In 2010, the High Court established that the young man had been dismissed due to his age, and that he had therefore been subject to direct discrimination. 

Under section 6 (1) of the Directive, the member states may, however, choose that discrimination due to age does not constitute discrimination unless the discrimination is objectively justified by a legitimate purpose and the means to achieve that purpose are appropriate and necessary.

The High Court found that the purpose of section 5 (5) of the Act is to support young peoples' occupational integration by way of work experience. The High Court found that this was a legitimate purpose to pursue.

Further, it is a condition for applying the provision that the employment is covered by a collective agreement, which contains specific rules on payment of young people under 18. This means that the labour market parties have decided on this area. 

The High Court further noted that heavier requirements are made for the employers when it comes to the employment of young people as the employers must observe special rules, including the Working Environment Act. At the same time, there are limitations as to what kind of tasks you may ask young people to perform considering their lack of experience and maturity. An employer would therefore with every probability employ an adult if the young worker under 18 was to have the same pay as the adult. 

The possibility of the employer to dismiss young people who turn 18 makes way for the employment and professional experience of other young people and, at the same time, a prohibition would result in the employers being less willing to employ young people. 

On this basis, the High Court found that the provisions of the Act are appropriate and necessary to achieve the objective - young peoples' occupational integration.

The High Court therefore ruled in favour of Irma and did not find it necessary to decide whether the Directive could be relied on in a dispute between private parties.

The Supreme Court upheld the High Court ruling

The Supreme Court found that a lower pay to young people under 18 compared to adults and the possibility of dismissing young people when they turn 18 must be considered necessary means in order to achieve the above objective.

The Supreme Court attached importance to the fact that the provision of the Anti-Discrimination Act does not give employers general access to discriminate against young people under 18 when it comes to pay and dismissal, but only to the extent that the employment is covered by a collective agreement containing specific rules on payment of young people under 18. 

According to the provision, it is for the labour market parties to conduct collective negotiations under their basic right in order to find a balance between their interests considering the overall situation of the market and the specific characteristics of the positions in question. 

The Supreme Court found that the fact that discrimination against young people under 18 concerning pay and dismissal should not take place outside an area covered by a collective agreement is in accordance with the principle of proportionality and helps ensure that discrimination due to age only takes place if found necessary by the labour market parties.

This access to discrimination against young people under 18 concerning pay and dismissal in section 5 a (5) of the Anti-Discrimination Act does therefore not extend beyond what is authorised by article 6 (1) of the Employment Equality Directive.

Comments

In connection with the case, the Supreme Court had rejected to present the question to the European Court of Justice referring to the fact that the national courts have a relative wide margin when assessing whether the means for achieving the objective are appropriate and necessary. This was provided by the rulings of the European Court of Justice in the cases Mangolf, de la Villa and Kücükdeveci. 

In the ruling, the Supreme Court has administered this assessment and in particular attached importance to the basic tradition of the Danish model that the labour market parties when negotiating a collective agreement find a balance between their interests considering the overall situation of the relevant labour market and the specific characteristics of the relevant positions. 

It is important to emphasise that the Supreme Court ruling only makes it possible to discriminate in relation to pay and dismissal. Discrimination due to age is not allowed in relation to any other employment matters.

The content of this Newsletter is not, and should not replace, legal advice. 

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