- 24 Mar 2015
- Søren Eeg Hansen
A government agency discharged the burden of proving that age was not a factor although a majority of employees who had been made redundant were aged 55 or more.
Under the Danish Anti-Discrimination Act, employers are generally not allowed to treat employees differently due to their age. This principle also applies to the process of selecting the employees who are most expendable in connection with redundancies. But does this mean that an employer is guilty of age discrimination if the redundancies required to effect costs savings affect a majority of older employees?
A 66-year-old land surveyor was made redundant when the government agency he worked for had to cut 90 jobs. The land surveyor did not understand why he had been selected as one of the expendable ones. He argued among other things that he had only ever received positive feedback at appraisal interviews, and he had also been granted a one-off sum the year before, as a result of his professional qualifications.
The land surveyor believed that his age had been the deciding factor, arguing among other things that 22% of all staff at the agency were aged 55 or more while 44% of those who had been made redundant were aged 55 or more.
The employer discharged the burden of proof
Due to the statistics produced by the land surveyor, the Danish Board of Equal Treatment held that the complainant had shown facts which gave rise to a presumption of indirect age discrimination.
Even so, the Board took into account that the government agency had made an individual and written assessment of the employees based on five objective criteria, which had been adopted by the central consultation committee. Since the government agency was also able to explain why the land surveyor was expendable, the Board was satisfied that the land surveyor's age had not been a factor, and therefore dismissed his complaint.
Norrbom Vinding notes
- that the decision is an example that statistics will be taken into account in the decision of whether the employee has created a presumption of differential treatment so as to reverse the burden of proof; but
- that statistics alone do not provide a sufficient basis on which to conclude that age discrimination has taken place if the employer is able to document the factors which were given weight in the selection process.