The ECJ has ruled that a German law disregarding years of service while aged under 25 when calculating statutory notice entitlement is unlawful age discrimination. This points the way for a possible challenge to the age bands used to calculate the unfair dismissal basic award and statutory redundancy pay in the UK.
A German law disregarding years of service aged under 25 when calculating service-related notice treated a young employee less favourably than an older one with the same length of service.
The ECJ ruled that the German government had a legitimate labour market policy aim in preserving employer flexibility, by reducing the burdens on employers when dismissing younger workers, from whom it is reasonable to expect a greater degree of personal or occupational mobility. It was also a legitimate aim to increase protection according to length of service.
However, the legislation was not appropriate for achieving those aims, because the difference in treatment was based not on age or length of service at the date of dismissal but on whether the worker was under 25 at the time of recruitment.
Because non-discrimination on grounds of age is a fundamental principle of EU law, given effect by the Framework Directive, national courts must disapply any conflicting national laws. As a result, individual employees can directly enforce these rights against private sector employers as well as public sector ones.
UK law on the unfair dismissal basic award and statutory redundancy pay provides for lower compensation for years of service spent aged under 41 and lower still for years aged under 22. The ruling may therefore presage similar claims here against private and/or public sector employers. (Kücükdeveci v Swedex, ECJ)