The Danish Supreme Court has recently ruled that it was not a violation of Danish law for an employer to pay an employee under 18 less than the adult employees. Furthermore, the Supreme Court ruled that the employer was allowed to dismiss the employee by the time he reached the age of 18.
Irma, the Danish supermarket operator, had hired a 16-year-old boy as a service assistant. Throughout his employment he received a lower salary than the adult employees in the same position. When he reached 18 he was dismissed – only because of his age. The dismissal and the level of salary was in accordance with the collective agreement between Irma and the union (HK).
The Discrimination Act
According to the Discrimination Act, employers are not allowed to treat employees differently on the basis of their age. However, an exception applies. If the employee is less than 18 years old and the employment is covered by a collective agreement which contains special rules regarding salary and dismissal of employees under 18, the employer may treat these employees in accordance with the collective agreement.
In this case, the parties agreed that the employment as such was in accordance with this exception to the Danish Discrimination Act.
The Danish rules regarding non-discrimination are an implementation of an EU directive. According to the EU directive, employers are allowed to discriminate if the discrimination is objectively and reasonably justified by a legitimate aim in the context of national law. Furthermore, the directive stipulates that it is a legitimate aim to employ young people under less favorable conditions than adult employees, if the aim serves to promote their vocational integration. The question in this case was whether or not the Danish exception was in accordance with the EU directive.
The Danish Supreme Court
The Danish Supreme Court found that the purpose of the exception in the Danish Discrimination Act is to promote young people’s vocational integration. The provision seeks to make it more attractive to hire young people rather than adults. The Supreme Court mentioned in the grounds of the judgment that if the young employees must have the same conditions as the adult employees for example in relation to salary, the employer will prefer to hire adults, since they have more experience and can take on more kinds of work compared with the young employees.
Furthermore, The Supreme Court found that it was in accordance with the EU directive to dismiss an employee on the basis of the employee reaching the age of 18.The court stated that without such possibility, employers would be less likely to hire young people under 18, and the exception in the Danish Discrimination Act would be less effective.
Finally, the Supreme Court stated that there is no general right to treat employees under the age of 18 different than adult employees in terms of salary and dismissal. Such right only applies to the extent that the employment is covered by a collective agreement containing special rules regarding payment and dismissal of young employees under 18.
On these grounds the Supreme Court concluded that a lower remuneration for young employees under 18 and the possibility of dismissal when they reach the age of 18 are considered as necessary means to promote the employees’ vocational integration.
The judgment shows that in some cases it is in accordance with the law to employ young people under 18 on less favorable terms than the terms of adult employees. However, the employment terms must be covered by a collective agreement.
IUNO recommends that companies are careful with conditions that may constitute a direct or indirect discrimination against certain groups of employees, for example due to their age. This case shows us that discrimination may sometimes be legal if the relevant conditions are met. You should therefore always pay special attention to the conditions for legal discrimination in all employment matters.
[Judgment of the Danish Supreme Court – 14 November 2013 – Case 185/2010]