On 1 October 2014, the Supreme Court awarded compensation of four months' salary to pilots subject to direct discrimination due to age in connection with their dismissals.

During a round of dismissals at SAS, 54 pilots were dismissed due to shortage of work. After negotiations between the Danish Airline Pilots Association and similar associations in Sweden and Norway, the pilots entitled to pension were selected to be dismissed first. The dismissed pilots were between 60 and 65 and entitled to receive pension according to the collective agreement.

After a weighing of the considerations behind the dismissals, the High Court found that there were mitigating circumstances, and compensation was therefore reduced to DKK 300,000 to each pilot equivalent to approx. three months' salary.

The pilots appealed against the ruling to the Supreme Court claiming higher compensation.

THE SUPREME COURT ATTACHED IMPORTANCE TO THE GRAVITY OF THE VIOLATION

First of all, the Supreme Court noted that, when fixing compensation, consideration must be taken to the gravity of, the reason for and the nature of the violation. 

The Supreme Court has previously established that compensation under the Non-Discrimination Act should be based on the practice developed under the Equal Treatment Act. This was established in U.2013.2575.H, which case concerned compensation for dismissal of a legal secretary diagnosed with ADHD.

The Supreme Court now states that, due to the pilots' high seniority, compensation should be fixed at more than six months' salary if applying the principles developed under the Equal Treatment Act, but in the present case there was a reason to make a downward departure from this principle. 

MITIGATING CIRCUMSTANCES

The Supreme Court emphasised a number of mitigating circumstances in relation to the dismissals, including that the dismissals were based on shortage of work, and that the criteria for the dismissals had been laid down together with the unions. 

The Supreme Court also emphasised that SAS had wished to show consideration for the younger pilots with families, who therefore depended on the income, at the expense of the older pilots, who were assumed to be able to support themselves as they for most of their work life had planned their retirement after the age of 60. 

Based on mitigating circumstances, a majority (three out of five judges) awarded compensation equivalent to four months' salary. Despite the mitigating circumstances, the minority awarded compensation equivalent to six months' salary. 

COMMENTS

The ruling shows that, even though the practice concerning fixing of compensation developed under the Equal Treatment Act is taken into account, it is not possible to equate the level under the Equal Treatment Act with the level under the Non-Discrimination Act. The principle may be departed from if considerations speak in favour of higher or lower compensation.

There may be very different considerations to take in cases concerning discrimination due to age under the Equal Treatment Act and the Non-Discrimination Act and other cases concerning discrimination under the Non-Discrimination Act. It is therefore to be expected that case law will provide a more balanced picture in the future of the fixing of compensation under the Non-Discrimination Act. 

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

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Marianne Lage

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