The legal background
The issue of compensating the cost of expensive training provided to an employee is a well-known and legitimate concern for any employer who wishes to maintain the profitability of its business. However, in considering whether or not to provide such training in light of the cost of doing so, employers should take into account possible discrimination which may arise from such situations.
In this respect, the principle of non-discrimination prohibits any employer from treating an employee differently on the basis of certain grounds. However, this principle still allows for differences of treatment provided that such differences are justified by an essential and direct professional requirement, provided that the objective is legitimate and the requirement is proportional.
In a recent decision of the Supreme Court dated February 18, 2014, a well-known airline (Air France) denied a pilot the right to undertake a flying training course for the brand new A380. The concern for cost efficiency was expressed in this case by the fact that the training required for every pilot a minimum 6-year period of assignment. The employer justified its decision by claiming in particular that the employee would turn 60 during his minimum period of assignment, and thus was likely to terminate his contract for retirement at some point during such period. The company therefore claimed that it has no guarantee that the employee would continue to perform his duties after reaching the age of 60, since the Civil Aviation Code made such continuation conditional upon an express application of the employee renewable each year (pilots being allowed to continue to perform their duties until 65).
The employee, considering this to constitute age discrimination, lodged a claim with the employment court in summary proceedings requesting the award of provisional damages and a ruling ordering his application for the training course to be accepted.
The Supreme Court’s ruling
The Supreme Court held that the employer’s refusal to provide the requested training did in fact constitute unlawful age discrimination. In support of its ruling, the Supreme Court decided that the argument of cost-effectiveness was not relevant since any employee, at any time in his/her career and irrespective of his/her age, is entitled to terminate his/her employment contract even if he/she has not completed the minimum period of assignment after having taken the related training course. The refusal of the employer was therefore not justified by a legitimate reason.
A possible recommendation could have been to include in the employee’s contract (subject to his express consent) a penalty clause providing for the reimbursement of the training-related expenses in the event that the employee left the company within a specific time period following the training. Obviously, it goes without saying that such provision should not be based on the age of the concerned employee.