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Summary
Following the ECJ’s preliminary ruling in case C-587/20, the Danish Eastern High Court has ruled that a politically elected sector convenor of a trade union was protected against discrimination on the grounds of age under the Danish Anti-Discrimination Act.
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Legal background
Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation is implemented into Danish law through the Anti-Discrimination Act.
According to the Anti-Discrimination Act, an employer may not, directly or indirectly, discriminate against employees on the grounds of, for example, age in relation to recruitment, dismissal, transfer, promotion or with regard to pay or working conditions.
The prohibition of discrimination further applies to any person who introduces provisions and makes decisions concerning access to independent professions, and to any person who makes decisions on conditions for membership of, and involvement in, an organisation of workers or employers, including the benefits provided for by such organisations.
In case C-587/20 (HK/Danmark and HK/Privat) (reported in EELC Issue 2 2022), the High Court presented the ECJ with a reference for a preliminary ruling on whether a politically elected sector convenor of a trade union falls within the scope of Directive 2000/78 and, thus, whether setting an age limit for eligibility to stand as a sector convenor of such an organisation constitutes age discrimination contrary to the Directive.
The ECJ found that the scope of Directive 2000/78 is not limited to posts occupied by a ‘worker’ within the meaning of Article 45 TFEU, and that neither the political nature of a post nor the method of recruitment to a post (in this case election) has any bearing on the application of the Directive. Thus, the ECJ ruled that an age limit for eligibility to stand as sector convenor of an organisation of workers falls within the scope of the Directive.
Following the ECJ’s decision, the High Court has ruled on the case. -
Facts
The case concerned a sector convenor of a Danish trade union. The sector convenor was re-elected every four years and held that post for a number of years until she reached the age of 63 at which point she exceeded the age limit established in the statutes of the trade union for eligibility to stand as sector convenor. According to these statutes, persons over 60 years of age were ineligible for the post of sector convenor.
The sector convenor filed a complaint with the Danish Board of Equal Treatment, claiming that the age limit was contrary to the prohibition against age discrimination. The Board agreed and held that it was contrary to the Anti-Discrimination Act for the sector convenor to be prohibited from standing for election due to age.
The case was subsequently brought before the High Court, which referred the case to the ECJ for a preliminary ruling on the issue in question, as the High Court considered the judgment in the case depended on whether the politically elected sector convenor was covered by the protection against discrimination under Directive 2000/78. -
Judgment
Following the ECJ’s preliminary ruling in case C-587/20, the High Court’s judgment was in line with this ruling, as the High Court – citing the ECJ’s ruling – merely stated that the sector convenor was covered by the scope of Directive 2000/78 and, consequently, also the Anti-Discrimination Act.
Thus, the age limit laid down in the statutes of the trade union for eligibility to stand as sector convenor of that organisation constituted age discrimination contrary to the Anti-Discrimination Act. Accordingly, the sector convenor was awarded compensation. -
Commentary
The decision has attracted a great deal of attention in Denmark and is expected to give rise to considerations in relation to similar age limits in contexts other than traditional employment relationships.
In Denmark, it has for example been discussed whether CEOs – even though they are not viewed as employees under Danish law – are covered by the scope of the Anti-Discrimination Act. Based on the ECJ’s ruling, the majority of lawyers now seem to be of the opinion that CEOs are also covered by this Act. -
Comments from other jurisdictions
Germany (Hannah Vormann, Luther Rechtsanwaltsgesellschaft mbH): In Germany, equal treatment in employment and occupation is regulated by the General Equal Treatment Act (‘AGG’), which implements Directive 2000/78/EC. It explicitly protects employees against discrimination on the grounds of age, among other factors.
The AGG also states in which specific areas of employment or occupation discrimination is inadmissible. Those areas are listed in Section 2 of the AGG. This enumeration also includes membership or involvement in a trade union. That includes the opportunity of voting or being elected for a position in a trade union.
Another provision of the AGG – Section 18 – stipulates that all provisions of the AGG for the protection of employees against discrimination also apply to membership and participation in a trade union. Therefore, a trade union has the same obligations towards the persons acting for it as an employer has towards its employees. And employees may not be discriminated against by the employer because of one of the characteristics named in the AGG, such as age.
According to the AGG, it would therefore be inadmissible discrimination on the grounds of age if a trade union member could not be elected to an office because of their age, as this affects their participation in the trade union.
Hence German labour courts would have come to the same conclusion as the Danish High Court.
In addition to that, regarding the discussion in Denmark whether or not CEOs are covered by the scope of the Danish Anti-Discrimination Act, the German AGG again has a clear answer: CEOs and other executives are explicitly protected when it comes to access to employment and career advancement (Section 6(3) of the AGG).Ireland (Lorcan Maule, Mason Hayes & Curran LLP): Similar to the position in the Denmark case, in Ireland the law and practice in this area is not straightforward and has been developing at pace, and the plethora of cases before employment law forums dealing with age discrimination and different retirement ages in this regard is evidence of that fact. The issue of retirement is complex and gives rise to organisational concerns for employers. Issues arise in Ireland as most standard contracts provide for a retirement age of 65, however the Public Service Superannuation (Age of Retirement) Act 2018 now states that public servants are to retire at the age of 70.
In Ireland, the case law demonstrates that employers should ensure, in relying on a retirement age, that it is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. In a recent Irish case, A Bus Escort Worker – v – A National School ADJ-34958, the Workplace Relations Commission stressed the importance of early consultation with the employee regarding their retirement which would be in compliance with the Code of Practice on Longer Working (S.I. No. 600 of 2017). The Code provides that discussions should occur six to twelve months prior to the retirement age.
The above case highlights an important aspect for employers to be wary of when implementing a retirement age and dealing with retirement. The employee in this case raised an argument that she had been victimised by her employer and relied on her employer’s delay in managing her request not to retire early in grounding her complaint. While the Workplace Relations Commission did not find in the employee’s favour, stating that, while they did find unfavourable treatment, the delay did not meet the higher threshold of adverse treatment, it is an important reminder to employers that they should promptly deal with any request and, given the ever-changing area of mandatory retirement ages, the argument is bound to resurface.United Kingdom (Bethan Carney, Lewis Silkin LLP): This decision is unsurprising from a UK perspective. In the United Kingdom, trade union officials are employees of the trade union and would be covered by discrimination law. And CEOs are generally employees and also protected. But more significantly, in the United Kingdom discrimination protection extends to many individuals who are not in a traditional employment relationship. The definition of ‘employment’ in the Equality Act 2010 (the Act incorporating EU discrimination protections into UK law) is wider than the concept of employment for the purpose of unfair dismissal protection and includes those who contract ‘personally to do work’ (including some individuals who are self-employed for tax purposes).
Subject: Discrimination on grounds of age
Parties: The Board of Equal Treatment for A – v – HK/Danmark and HK/Privat
Court: Østre Landsret (Danish Eastern High Court)
Date: 9 June 2023
Case number: BS-35538/2018
Hard copy publication: Not yet available
Internet publication: Available from info@norrbomvinding.com
DOI: 10.5553/EELC/187791072023008003002
European Employment Law Cases |
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Case Reports | 2023/21 Politically elected sector convenor of a trade union was protected against age discrimination (DK) |
Trefwoorden | Age Discrimination |
Auteurs | Christian K. Clasen |
DOI | 10.5553/EELC/187791072023008003002 |
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Aanbevolen citeerwijze bij dit artikel
Christian K. Clasen, "2023/21 Politically elected sector convenor of a trade union was protected against age discrimination (DK)", European Employment Law Cases, 3, (2023):116-118
Christian K. Clasen, "2023/21 Politically elected sector convenor of a trade union was protected against age discrimination (DK)", European Employment Law Cases, 3, (2023):116-118
Following the ECJ’s preliminary ruling in case C-587/20, the Danish Eastern High Court has ruled that a politically elected sector convenor of a trade union was protected against discrimination on the grounds of age under the Danish Anti-Discrimination Act. |