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High Court affirms judgment on age discrimination at the Central Customs and Tax Administration

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

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The Danish Eastern High Court agreed with the Copenhagen City Court: age was a factor when the Central Customs and Tax Administration relocated a number of staff to a new office in another part of Denmark

Earlier this year, the Copenhagen City Court ruled that the Central Customs and Tax Administration breached the Danish Anti-Discrimination Act and its prohibition on age discrimination when it transferred five senior employees to a new office in Ringkøbing. The ruling, which was reported by Norrbom Vinding in a previous news article, was appealed by the Tax Administration, but the High Court has now sided with the lower court.

In connection with a major restructuring exercise, the Tax Administration decided to relocate a number of employees from various regional offices to a new office in Ringkøbing as there were not enough applicants to fill the vacancies.

In the process of selecting the employees to relocate from the regional office in Maribo, a shortlist was drawn up of 36 employees whose work somehow involved the areas that would transfer to the new office.

The regional office in Maribo ended up selecting eight employees out of a total of 13 in one of its bookkeeping departments. And all of those eight employees were aged 50+, while four of those who would remain were in their 40s. Three other employees who had been selected came from other departments, but they, too, were older than the employees in the bookkeeping department who had not been selected, and two of them spent only 1.2 and 3.9% of their working time on the duties that would transfer to the new office in Ringkøbing. In comparison, the four employees in the bookkeeping department who had not been selected spent most of their working time on those duties.

The Tax Administration failed to discharge the burden of proof

The Court held that there was reason to presume that age had been a factor in the selection process. It was therefore for the Tax Administration to disprove discrimination and the Court was not satisfied that it had done so. In this connection, the Court gave weight to the oral evidence and the absence of any written material that illustrated the selection process.

The Court awarded each employee DKK 200 000 in compensation, equivalent to 7-9 months' pay. Some of the factors taken into account by the Court were that the decision to relocate the employees in question amounted to a constructive dismissal and that the employees had been employed for more than 25 years.

The lower court, on its part, had awarded the employees between 12 and 18 months' pay in compensation.

 

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