In July 2012, two persons - both aged 25 at the time of the application - applied for a position as office apprentice at a school.
In August 2012, the school sent an e-mail to the two applicants. It appeared from the e-mail that "... The school's budget for the position is, however, based on a non-adult apprentice, and the initial review and selection among the applicants will be based on applicants under the age of 25 ...".
Office apprentices' pay rates are fixed in a collective agreement between HK/Kommunal and Kommunernes Landsforening. The collective agreement stipulates that an office apprentice over 25 years is to receive a higher rate than other apprentices.
The reason for this is that, in many private companies, a similar arrangement applies, and there was therefore a wish to make it as attractive for persons over 25 years to get an education with a municipality as with a private company.
ADVANCE REJECTION DUE TO HIGHER PAYROLL COSTS IS DISCRIMINATION
In the school's e-mail to the two applicants, the consideration for the payroll costs when employing adult apprentices was given as the only reason for rejecting the two applicants. An employer may not discriminate against applicants based on age, and for this very reason, the applicants had proven actual circumstances giving rise to the assumption that they had been discriminated against.
The district court found that the municipality's advance opting out of applicants over 25 was directly contrary to the purpose of the collective agreement to introduce pay differentiation in order to create a basis for apprentice positions for persons over 25.
The District Court further found that the case was different from the Supreme Court ruling in the Irma case where the Supreme Court found that the access to dismiss young people when they turn 18 is assumed to be in accordance with the purpose of the rule in section 5a (5) of the Equal Treatment Act and within the framework of article 6 (1) of the Employment Equality Directive as the rule is justified by legitimate sociopolitical purposes of common interest.
VIOLATION OF THE PRINCIPLE OF EQUALITY
On the other hand, a municipality's wish to avoid increased payroll costs is not a consideration justified by common interest which may lead to an exemption from the prohibition of the Non-Discrimination Act against discrimination due to age.
As the municipality had not met the burden of proving that the principle had not been violated, it was ordered to pay compensation to the two applicants.
It is noted that the period allowed for appeal has not expired.