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The statistics were clear

October 2011 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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It cost an employer about EUR 40,000 to dismiss a 63-year-old employee. The High Court held that she had been discriminated against because of her age.
If an employee can show reason to believe that he or she has been discriminated against because of age, the burden of proof shifts. And it is then for the employer to disprove discrimination. The employer was unable to do that in this case.
A large Danish media business was hard pressed financially and had to give notice of redundancy to a number of its employees. One of the criteria in the selection process was whether the employees were able to work with different media. Management did not believe that a 63-year-old woman met this criteria and she was therefore given notice.
She was told that her competences were too narrow because she had almost exclusively worked with radio production. But the employee felt she had been selected for her age more than for the work she had actually been asked to perform. She therefore sued the media business, first in the Copenhagen City Court and later in the High Court.
Bar chart resulted in compensation
One of the key points that weighed with the High Court was a bar chart showing the age distribution of the affected employees. It was clear from the chart that the major part of the affected employees were aged 50+. There was therefore a presumption that age had been a factor in the selection process – and so the burden of proof shifted.
The media business was unable to disprove discrimination. For it was unable to show that the 63-year-old was less versatile than her colleagues in terms of being able to work with different media. Accordingly, the burden of proof had not been discharged and the media business was ordered to pay about EUR 40 000 in compensation to the 63-year-old.
The High Court thus affirmed the Copenhagen City Court’s judgment.
Norrbom Vinding notes:
  • that the judgment stresses the importance of employers being able to show clear proof that the selection criteria applied in a round of redundancies are objective in the face of statistics showing a skewed age distribution.
The employer has sought permission to appeal to the Danish Supreme Court.
The above does not constitute legal advice and should not be relied upon as such

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