- 16 Jan 2014
The Danish Supreme Court recently affirmed the High Court´s judgment, holding that lower pay to under-18s and dismissal when they turn 18 are not incompatible with Denmark´s obligations under EU law
The Danish Supreme Court recently affirmed the High Court's judgment, holding that lower pay to under-18s and dismissal when they turn 18 are not incompatible with Denmark's obligations under EU law.
The case concerned a young service assistant who – in accordance with the applicable collective agreement between his employer, Irma (a Danish chain of supermarkets), and the trade union HK – was paid less than his adult colleagues due to the fact that he was under 18. And in line with common practice in this sector, the service assistant was given notice just before he turned 18.
The parties agreed that the employer's actions were fully in line with the particular derogation in section 5a(5) of the Danish Anti-Discrimination Act providing that the principle of non-discrimination on grounds of age does not apply to under-18s if the employer is covered by a collective agreement containing specific provisions governing under-18s and their pay.
But the trade union argued that section 5a(5) of the Danish Anti-Discrimination Act was incompatible with the Employment Equality Directive and brought proceedings against the employer and the Danish Ministry of Employment.
On appeal, the Supreme Court affirmed the High Court's opinion that based on the preparatory notes to the Danish Anti-Discrimination Act and various other factors, it can be taken as a fact that section 5a(5) is intended to support young people's integration into the labour market by making it easier for them to gain work experience before the age of 18, and that this must be deemed to be a legitimate aim in accordance with the Employment Equality Directive.
The Supreme Court further affirmed that the special pay regime for under-18s and the possibility of dismissing them when they turn 18 must be deemed to be appropriate means of achieving the legitimate aim, in the same way as the regime cannot be deemed to go beyond what is necessary to achieve the aim.
In this connection, the Supreme Court had regard, among other things, to the fact that the derogation only applies to the extent that the employment relationship is covered by a collective agreement which contains special provisions governing under-18s and their pay.
On that basis, the Supreme Court upheld the High Court's judgment in favour of the employer and the Danish Ministry of Employment.
Norrbom Vinding represented the employer before the High Court and the Supreme Court.