- 16 Jan 2017
- Søren Eeg Hansen
As there was only slightly more employees aged +50 among those who had been made redundant, the Danish Board of Equal Treatment did not find any reason to believe that age had been a factor in the selection criteria.
Employers are not allowed to take age into account in the selection criteria for redundancy. If an affected employee is able to show that there is reason to presume that age has been a factor in the employer's decision, it is for the employer to disprove that presumption. In this case, the question before the Danish Board of Equal Treatment was whether a consultant who had been made redundant together with many other employees had been discriminated against on grounds of age.
The complaint was lodged by a 61-year-old consultant who worked in a media organisation. The media organisation was required to cut costs, which meant that 101 employees were given notice of redundancy. Out of the 101 employees under notice, 34 ended up being made redundant while the rest of them accepted a severance agreement or were redeployed to other positions in the organisation.
In the consultant's department two other employees aged 41 and 53, respectively, were also dismissed. The consultant believed that age had been a factor in the selection criteria as far as he himself was concerned and therefore lodged a complaint with the Board of Equal Treatment.
A slight overweight
Before the Board, the consultant submitted that he had in effect been selected because of his age, producing statistics to show that in the group of employees aged 19-35 no-one had been given notice, in the group aged 36-45 approximately 0.5% had been given notice, in the group aged 46-50 1.5% had been given notice, in the group aged 51-60 approximately 3% had been given notice and in the group aged 61-70 2% had been given notice.
The Board accepted that there was a slight overweight of employees aged +50 among those affected by the redundancies, but did not believe that this was a sufficiently significant share to create a presumption that age had been a factor in the employer's selection criteria. Nor did the age of those who had been notified of redundancy compared with the age of those who had not indicate that there had been any unlawful age discrimination. Accordingly, the Board did not allow the complaint.
Norrbom Vinding notes
- that, depending on the circumstances of each individual case, statistical data may serve to create a presumption that age has been a factor in an employer's selection criteria; but
- that the Danish Supreme Court established on an earlier occasion that this will require the statistical data produced to be reliable and sufficiently significant.
Norrbom Vinding represented the employer before the Board of Equal Treatment.