Neither young nor old people may be discriminated against due to age

On March 12 2015, the Supreme Court fixed compensation to pilots who had been discriminated against due to age - this time the youngest pilots - at six months' pay.

Selected for dismissal according to a list

In 2009, SAS had to dismiss a number of pilots due to a shortage of work. The year before, a number of older pilots had been dismissed following negotiations. On 1 October 2014, the Supreme Court awarded four months' pay to these pilots (UfR 2015.1). See previous article on this ruling.
In connection with the 2009 negotiations, the pilots were dismissed according to a seniority list. The pilots were first listed according to the time of recruitment and then according to age with the result that the youngest were dismissed first.

Discrimination due to age

The Board of Equal Treatment, the Copenhagen City Court and the Eastern High court found that these pilots were subject to discrimination due to age. The city court found that compensation was to be fixed at nine months' pay considering the very extensive financial, family-related and personal consequences of the dismissals. The High Court affirmed the level of compensation.

The Supreme Court once again attached importance to the gravity of the violation

The Supreme Court referred to its own ruling of 1 October 2014 and repeated that when fixing compensation consideration must be given to the gravity, the reason for and the nature of the violation.

... but most important  was "the reason for the violation"

Further, the Supreme Court stated that "in this connection, regard must first of all be had to the reason for the violation ...". The Supreme Court continued by referring to the fact that the dismissal of the four pilots was due to a shortage of work, was part of major cut backs and took place according to the seniority list agreed between SAS and Dansk Pilotforening.

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.
In the Supreme Court ruling from October, the court fixed compensation at four months' pay as there were mitigating circumstances because SAS (at that time) 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.
In the new ruling, the Supreme Court therefore fixed compensation at six months' salary.

Comments

The ruling repeats that, even if taking into account the practice concerning fixing of compensation developed under the Equal Treatment Act, 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.

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

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Marianne Lage

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