The Supreme Court affirmed the decisions of the high court and district court to dismiss legal action concerning age discrimination. The action was not covered by the Anti-Discrimination Act as it was a contractual claim which was to be settled by industrial arbitration.

Background

An office worker was dismissed when turning 67 according to the mandatory retiring age of a local agreement. She brought legal action against the employer, TDC, claiming compensation for dismissal contrary to the Anti-Discrimination Act. TDC claimed dismissal of the action as the employee's union had initiated prior industrial arbitration.

Grounds and conclusions of the high court and the district court

The district court found that the collective agreement between DI (the Confederation of Danish Industry) and CO-Industri met the minimum requirements of the Council Directive establishing a general framework for equal treatment in employment and occupation in relation to age and disability, and the Anti-Discrimination Act did therefore not apply.

The employee's claim was therefore characterised as a claim based on a contract, which was to be settled under the general industrial disputes procedures.

Under section 11 (2) of the Labour Court Act, an employee may only bring action that belongs under the industrial court before the ordinary courts if the employee's union will not bring industrial action.

When bringing industrial action, the union had acknowledged conducting the proceedings even if the arbitration proceedings were discontinued later on. There were thus no circumstances under section 11 (2) of the Labour Court Act that could result in the employee being entitled to have the matter brought before the ordinary courts.

The district court therefore dismissed the action. The high court upheld the district court's grounds and conclusions thereby affirming the ruling.

Grounds and conclusion of the Supreme Court

The Supreme Court agreed with the previous instances that the collective agreement sufficiently implemented the provisions of the directive and, consequently, the Anti-Discrimination Act did not apply.

The question remaining was then whether the employee's union had given up pursuing the employee's claim by way of industrial arbitration, after which the employee would have the opportunity to bring the matter before the ordinary courts.

The Supreme Court found that the employee had not proved that her union, CO-Industri, had given up pursuing her claim by way of industrial arbitration, and that this doubt should be to the detriment of the employee.

The Supreme Court also noted that the dismissal of the action was not contrary to article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the right to a fair trial as the employee had had the opportunity to have the case heard by way of industrial arbitration or before the ordinary court if the requirements of section 11 (2) of the Labour Court Act had been met.

The Supreme Court therefore affirmed the ruling of the high court and dismissed the action.

Comments

The Supreme Court ruling determines that the burden of proving that a union does not wish to bring industrial arbitration in connection with an employee's claim rests on the employee who wishes to bring action before the ordinary courts. Any doubt as to why the action has not been pursued is to the detriment of the employee.

The Supreme Court attached importance to the fact that the employee had not asked CO-Industry why it had chosen to discontinue the arbitration proceedings or asked the union to pursue the matter. The employee's inactivity vis-á-vis the union may be of importance in relation to the right to have disputes heard by the ordinary courts.

The Supreme Court also determines that the dismissal of an action that could have been heard by industrial arbitration does not constitute a violation of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the right to a fair trial. The article does not involve a right to choose between the industrial system or the ordinary courts.

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

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Marianne Lage

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