In a recent judgment (AD 2015 no. 51) from the Swedish Labour Court, the court ruled on whether a bus company's policy not to renew fixed-term employment contracts for bus drivers over the age of 70 constituted unlawful age discrimination. The claimants (three bus drivers whose agreements were not extended on the basis of the policy) and the company agreed that the policy was discriminatory. However, the company argued that the policy could be justified on the grounds of, inter alia, traffic safety.
The Court noted that the aim of the age policy was to secure traffic safety. The Court held that, in order to secure traffic safety, it is necessary for drivers to have certain physical and cognitive abilities and that those physical and cognitive abilities generally deteriorate with age. As such, the policy related to a genuine and decisive occupational requirement. However, after examining national and international regulations regarding the age of professional drivers, the court found that the policy was not an appropriate and necessary measure to ensure traffic safety. The court argued that relevant regulations do not set an upper age limit, but stipulate that the suitability of drivers be assessed on an individual basis. Accordingly, a policy determining a cut-off age for drivers was not a proportionate measure to ensure traffic safety and the court held that the three drivers were victims of unlawful discrimination by the company.
As the case shows, companies should be vigilant when implementing age-based policies and ensure that they comply with anti-discrimination legislation. In this case, the bus company was at liberty not to extend the contracts with the bus drivers under the Employment Protection Act and the applicable collective bargaining agreement, but choosing not to extend the contracts due to the drivers' age amounted to discrimination under the Discrimination Act.
Comments on the case from a Finnish perspective:
It seems that in this case it would have been possible to achieve the desired objectives without referring to any age limits and therefore the court's reasoning sounds justifiable. Employers in Finland should also be wary when implementing age-based policies and measures.