Eastern High Court ruling
Arbitration tribunal ruling
In connection with general workforce reductions, the age distribution among dismissed employees is vital in the assessment of whether age discrimination has taken place. This is reflected in two recent decisions, each of which reached a different conclusion - a June 16 2011 judgment of the Eastern High Court and an April 6 2011 advisory opinion of an industrial arbitration tribunal.
As part of wider cost-cutting measures, a 63-year old employee was dismissed after 33 years of employment with the same media company. Four of the employee's colleagues, all of whom were over 55 years old and worked in the same department as the employee, entered into severance agreements as an alternative to dismissal. Among the other dismissed employees, there was a predominance of dismissals and resignations among employees in the 50-69 age group in comparison to younger employees.
The employee was dismissed when the radio show on which she worked was forced to close. In addition, emphasis was placed on the fact that the employee did not possess the qualifications necessary for working on several different media platforms. For this reason the company chose to dismiss her instead of another employee.
Based on the age distribution among the dismissed employees, in both the employee's own department and the company as a whole, the Eastern High Court found that the employee had presented sufficient facts to suggest that she had been subject to age discrimination. Consequently, the employer had to prove that the employee's age had not been a factor in the assessment of who to dismiss. The court found that the employer had not satisfactorily proven this argument, as the employer had not demonstrated how the dismissed employee's multimedia qualifications were different from the other employees' multimedia qualifications.
Taking into account the employee's seniority and salary level she was awarded compensation of Dkr300,000, corresponding to approximately seven months of salary.
Forty employees were dismissed as part of a workforce reduction within the National Police. The dismissed employees were aged between 25 and 67 and there was an even distribution of dismissed employees under and over the age of 50. However, within a specific staff group - building caretakers and service supervisors - there was a clear predominance of older employees in comparison to the other dismissed employees, with five out of six dismissed employees in the group in question being over 50. The sixth employee was 36 years old.
The six dismissed employees within this staff group brought their dismissals before an industrial arbitration tribunal claiming that the dismissals constituted age discrimination, and further that the employees' long seniorities should have been taken into account.
The arbitrator rejected the claim that age discrimination had taken place. He referred to the fact that the criteria for selecting the employees to be dismissed were determined by the works council, and that the employees' ages were not included therein. The selection had been made from an overall assessment of how the National Police would be best equipped to maintain its future tasks. Moreover, the submission of evidence in general did not provide a basis for suggesting that importance had been attached to the employees' ages in the assessment of who to dismiss.
Furthermore, the arbitrator noted that on application of the Act on Prohibition Against Discrimination in Respect of Employment, it is important first to look at the total number of employees being dismissed, and not only at how the dismissals are distributed in terms of age within the individual trade union areas.
Finally, the arbitrator stated that it would have been preferable if the National Police had taken the long seniorities into account in the dismissal criteria, but this did not change the arbitrator's decision.
The decisions show that the age distribution among all dismissed employees is vital in the assessment of whether age discrimination has taken place in connection with a workforce reduction. The advisory opinion of the industrial arbitration tribunal further shows that the dismissal of older employees does not in itself constitute age discrimination when the basis for choosing to dismiss older employees is based on fair grounds.
In contrast, the decision of the Eastern High Court shows that when an employee has presented sufficient facts to suggest that the employee in connection with the dismissal had been subject to direct or indirect discrimination due to age, a heavy burden of proof lies with the employer. In this connection it is vital that the employer can document the basis for its assessment that the dismissed employee's qualifications were not as strong as the qualifications of the non-dismissed employees.
For further information on this topic please contact Tina Reissmann at Plesner by telephone (+45 33 12 11 33), fax (+45 33 12 00 14) or email ([email protected]).