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Employers’ age discrimination of under-18s legal

July 2010 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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On 30 June 2010, the Danish Eastern High Court established that the provisions and the practice on a number of areas covered by collective agreements, supporting a lower pay for employees under 18 years and termination of the employees when they turn 18, cannot be deemed to constitute a violation of the Employment Equality Directive (Directive 2000/78/EC of 27 November 2000).

The case concerned a young service assistant who - in accordance with the applicable collective agreement between his employer, Irma A/S, and the trade union HK - was paid less than his adult colleagues due to the fact that he was under 18. Further, in line with common practice on this area, the service assistant was given notice just before he turned 18.  

Subsequently, HK claimed that the lower pay as well as the termination were in breach of the Employment Equality Directive.  

There was agreement on the fact that the employer's actions were fully in line with the particular derogation in section 5 a (5) of the Danish Anti-Discrimination Act under which the prohibition of discrimination on the basis of age does not apply to under-18s if the employer is comprised by a collective agreement containing specific provisions on under-18s in relation to recruitment, payment and termination. Therefore, another issue was whether section 5 a (5) of the Anti-Discrimination Act could be deemed to be in violation of the Employment Equality Directive. In the light of this, HK took legal action against both Irma and the Danish Ministry of Employment.  

The Eastern High Court pointed to the fact that, according to the interpretive notes of the Anti-Discrimination Act, the derogation in section 5 a (5) is intended to support young people's integration into the labour market by giving them the opportunity to gain work experience. On this basis, the Court ruled that the age discrimination was in fact objectively and reasonably justified in a legitimate aim which is a requirement of the Employment Equality Directive.  

In addition, with reference to, among other things, case law from the European Court of Justice, the Eastern High Court found that section 5 a (5) of the Anti-Discrimination Act and the practice which has been established within this agreement area in connection with employment of under-18s must be deemed both appropriate and necessary as part of the efforts to achieve the legitimate aim.  

On this basis, the Court dismissed the claim against both Irma and the Ministry of Employment.  

During the proceedings, Irma claimed that the Employment Equality Directive cannot be relied upon in the relations between two private parties. However, in consequence of the Court's ruling that the Directive had not been violated, the Court did not have to take a stand on this issue.  

It should be noted that the ruling has been appealed to the Danish Supreme Court.  

Norrbom Vinding has represented Irma during the pending case before the Eastern High Court, and we will of course follow and report on the case when a final ruling from the Supreme Court has been delivered.


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