Dismissals contrary to the Equal Treatment Act

Date 19 aug. 2009
Download PDF version PDF

 

On 26 June 2009, the Board of Equal Treatment ruled in a case regarding discrimination against employees of a certain age. The Board of Equal Treatment decided that the dismissals were contrary to the Equal Treatment Act, and a compensation of more than DKK five million was granted.

 

The case in brief

In this case, six pilots were dismissed due to the company having too many pilots employed. All of the dismissed pilots were older than 60 years of age and had all been working in the company for 18 to 37 years. The pilots filed complaints to the Board of Equal Treatment claiming illegal dismissals as the dismissals were motivated by age and could therefore not be considered as a reasoned argument for the dismissals.

 

Before the dismissals, the pilots’ trade union made an agreement with the company settling that all pensionable pilots should be dismissed before any other pilots.

 

The legislation

According to the Equal Treatment Act section 1 (1), it is forbidden for the employer to discriminate employees due to age. However, if the action can be categorised as indirect discrimination, the discrimination can be legal if the indirect discrimination is motivated in reasoned purposes and the actions to fulfil the purpose is appropriate and necessary according to the Equal Treatment Act section 1 (3).

 

It is not possible to derogate from the rule of the law according to section 5b.

 

If the employee is able to prove factual circumstances that indicate direct or indirect discrimination, it rests upon the employer to prove that the law was not violated, cf. the Equal Treatment Act section 7a.

 

The ruling of the Board of Equal Treatment

The Board of Equal Treatment decided that the dismissals were a case of indirect discrimination, because the pilots were dismissed due to their age. The criterion for the dismissal was the pensionable age. The criterion was apparently neutral but in reality the criterion would treat a person of a certain age poorer than other persons.

 

The Board decided that the pilots had shown circumstances that indicated that there was indirect discrimination and that the company had failed to show that the agreement with the trade union was objective and justified in reasoned purposes.

 

Therefore, the Board could see no reason to derogate from the main rule mentioned in the Equal Treatment Act section 1 (1). The Board decided that the pilots had a legitimate claim to compensation according to the Equal Treatment Act section 7.

 

Conclusion

Despite the previous agreement, the company had violated the Equal Treatment Act, because there was indirect discrimination without objective and reasoned purposes.

 

Companies should be aware that a prior agreement with a trade union about dismissals is not always in accordance with the Equal Treatment Act.

 

 

If you have questions regarding the above or require additional information about the Equal Treatment Act , please contact attorney Dan Moalem (dmo@mwblaw.dk) or attorney Christina Lund (clu@mwblaw.dk).

 

The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions of considerations.