Old - but not old enough

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Date:
17 Mar 2014

no age discrimination was involved when a 53-year-old child-minder was dismissed because of decreasing birth rates

No age discrimination was involved when a 53-year-old child-minder was dismissed because of decreasing birth rates

No age discrimination was involved when a 53-year-old child-minder was dismissed because of decreasing ‎birth rates.‎

The so-called shared burden of proof of the Danish Anti-Discrimination Act means that an employee ‎who believes that he or she has been discriminated against because of age must show facts which raise ‎a presumption of discrimination. In a situation where a number of employees are dismissed, weight will ‎be given to the age diversity among those remaining and also the age spread among those dismissed. ‎This can be seen from a recent decision from the Danish Board of Equal Treatment.‎
 
The case concerned a municipality which had to dismiss 23 child-minders because of decreasing birth ‎rates. The decision of which child-minders to dismiss was based on a number of fixed selection criteria, ‎and one of the affected child-minders was 53 years old.‎
 
The 53-year-old child-minder believed that her age had been a factor in the selection process and ‎therefore complained to the Board of Equal Treatment. Before the Board, the child-minder produced ‎various statistics which showed that the child-minders who had been dismissed were all older than the ‎average age of the child-minders employed by the municipality.‎
 
No presumption had been raised
The Board sided with the municipality. In its decision, the Board had regard to the fact that a relatively ‎higher number of older child-minders had been selected for dismissal and that the average age of the ‎remaining child-minders had therefore decreased. However, this fact had to be compared with the fact ‎that three of the child-minders who had not been selected were older than 53 and also that the age ‎spread among the child-minders who had been dismissed was relatively significant.‎
 
Accordingly, the Board did not believe that a presumption of discrimination had been raised.‎

 

Norrbom Vinding notes

  • that the decision illustrates that in a situation where several employees are dismissed, both the ‎age diversity among those remaining and the age spread among those dismissed will be taken ‎into account when determining whether the facts shown raise a presumption of age ‎discrimination.‎