No doubt about the Employment Equality Directive

Back
Categories
HR News
Date:
15 Aug 2012

the danish supreme court refuses to refer the issue of lower pay and termination due to age of under-18s to the eu court

By:
Yvonne Frederiksen

The Danish Supreme Court refuses to refer the issue of lower pay and termination due to age of under-18s to the EU Court

The Danish Supreme Court refuses to refer the issue of lower pay and termination due to age of under-18s ‎to the EU Court.
Age discrimination is prohibited by the Danish Anti-Discrimination Act and the Employment Equality ‎Directive. In Denmark, however, this general principle is subject to the derogation that employers are ‎permitted to pay under-18s less than adults and to terminate their employment once they turn 18, so ‎long as the employer is comprised by a collective agreement containing specific provisions on under-18s ‎in relation to recruitment, payment and termination.‎
 
The Danish Supreme Court is currently considering this derogation and whether it is at odds with the EU ‎law prohibition against age discrimination, and now the Supreme Court has decided on the issue of ‎whether to make a reference to the EU Court for a preliminary ruling.‎
 
The case concerns a young service assistant working in a Danish chain of supermarkets and had done so ‎since he was 16. In accordance with the applicable collective agreement he was paid less than his adult ‎colleagues due to the fact that he was under 18.  Shortly before he turned 18, he was given notice with ‎reference to his age.‎
 
His trade union then took legal action against both the supermarket chain and the Danish Ministry of ‎Employment, claiming that the lower pay and his dismissal constituted age discrimination contrary to EU ‎law. The Danish Eastern High Court ruled in favour of the supermarket chain and the Ministry of ‎Employment, but the trade union appealed to the Supreme Court. Now, the Supreme Court has decided ‎on the trade union’s request for a reference to the EU Court.‎
 
No doubt about the understanding
The Supreme Court has refused the trade union’s request for a referral to the EU Court. The Supreme ‎Court did not believe that such doubts exist about the interpretation of the provisions of the ‎Employment Equality Directive as to warrant a reference to the EU Court.‎

 

Norrbom Vinding notes

  • that the assessment of whether a national statutory provision which results in age ‎discrimination satisfies the conditions of the Employment Equality Directive is for the national ‎courts to make; and

  • that, in the Danish Supreme Court’s view, the assessment to be made in this case of section ‎‎5a(5) of the Danish Anti-Discrimination Act may be made, among other things, on the basis of ‎the guidelines which can be inferred from EU case law, and that there is thus really no doubt as ‎to how the provisions of the Directive should be understood in this case.‎
Norrbom Vinding represents the supermarket chain in the proceedings, which will continue in the ‎Danish Supreme Court where the court meeting is scheduled for November 2013. Click here to see our earlier commentary ‎on the judgment delivered by Eastern High Court.‎