1. Labour Law and the Discrimination on grounds of age
by Elisabeth Mansel

2. Agenda
Which factors influence the regulations on older workers in Labour Law?
What is the object of non-discrimination rules on grounds of age?
Legal basis
Cases in the European Court of Justice
The role of non-age-discrimination regulations in the big issue of ageism

3. Which factors influence the regulations on older workers in Labour Law?
ageing population
still low retirement ages
terms of employment, pensions, health care systems

4. Ageing population
The Ageing Report of the EU in 2012 says: The percentage of
young people (0-14) will remain constant, about 12 %,
those aged will become smaller: from 67 % to 56 %,
those aged 65 and above will rise from 17 % to 30 %,
those aged 80 and above will come close to the number of the young people (from 5% to 12%).
Decline from four working-age persons for every person over 65 to only two working-age persons
Doubling of the the economic dependency ratio

5. Still low retirement ages
Germany: used to be 65; will be increased gradually to 67 by 2029,
France: used to be 60 (men), 52 (women); increase gradually to 67 by 2023 (for both sexes),
Spain: used to be 65; increase gradually to 67 by 2027,
Portugal: used to be 65; increased to 66 in 2014.

6. impact on terms of employment, pensions, health care systems

7. What exactly is the object of non-discrimination rules?
Treat equal things equal and non-equal things non-equal.
Older and younger persons are a more vulnerable group of workers and need to be protected.
Do sickness and reduced working capacity amount to just cause for dismissal?
Are there special rules on the access to fixed-term and part-time employment for younger and older workers?
What is the pension norm?
Does labour law allow for special arrangements regarding work organisation, working time and leave for older workers?

8. Legal basis Fundamental rights
Prohibition of age discrimination Directive 2000/78/EC
Translation into national law

9. Fundamental rights Right to work Art. 15 CFREU
1.   Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.
2.   Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State. […]
Non-discrimination Art. 21 CFREU
1.   Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. […]
Right to fair and just working conditions Art. 31 CFREU
1.   Every worker has the right to working conditions which respect his or her health, safety and dignity.
2.   Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

10. Directive 2000/78/EC Preamble ‘[…]
(25) The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.’

11. Purpose (Article 1)
The purpose is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.
Concept of discrimination (Article 2)
1. For the purposes of this Directive, the "principle of equal treatment" shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless: […]’

12. Justification of differences of treatment on grounds of age (Article 6)
1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.
Such differences of treatment may include, among others:
(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;
(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;
(c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.
2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.’

13. Summary of Article 6:
Different treatments are justified if, under national law, it pursues a “legitimate objective”, including objectives related to employment policy, labour market or professional training policies, and the provided means chosen to pursue the objective are “appropriate and necessary”.
The possibility of exceptions to the principle of equal treatment is unique comparing to the other discrimination issues.
Which exact reasons justify a discrimination is up to the member state.

14. Translation into national law
e. g. in Germany: extremely broad list of legitimate aims which are only exemplary including entrepreneurial interests
Most states have an open or exemplar system like Germany.
The minority of states have a closed lists of legitimate aims but some of them also have the principle of general justification.

15. Conclusion:
Comparing to discrimination on grounds of gender or disability, the principle is weaker because it is subjected to more exceptions.

16. Cases in the European Court of Justice
Issues:
age-dependent dismissal regulations regarding the notice period
age-dependent wages
age-dependent amount of vacation days
age-dependent and forced termination regulations of employment relationships
in laws
in collective agreements
in employment contracts

17. Mangold (C-144/04) What happened?
A 56-year-old man (Mr. Mangold) was employed on a fixed term contract without an objective justification.
Law said (which came into force in 2001):
Ԥ 14 TzBfG
(3) The conclusion of a fixed-term employment contract shall not require objective justification if the worker has reached the age of 52 by the time the fixed-term employment relationship begins.’
Mangold claimed that the lack of protection, over age 52, was unjustified age discrimination.

18. Mangold (C-144/04) European Court of Justice: Discrimination?
Justification?
Problem: It‘s 2004 and the Directive only had to be implemented until > Can the ECJ judge this case?

19. Mangold (C-144/04) Discrimination? ECJ:
‘[This] leads to a situation in which all workers who have reached the age of 52, without distinction, whether or not they were unemployed before the contract was concluded and whatever the duration of any period of unemployment, may lawfully, until the age at which they may claim their entitlement to a retirement pension, be offered fixed-term contracts of employment which may be renewed an indefinite number of times. This significant body of workers, determined solely on the basis of age, is thus in danger, during a substantial part of its members’ working life, of being excluded from the benefit of stable employment which, however, as the Framework Agreement makes clear, constitutes a major element in the protection of workers.’
‚one person is treated less favourably than another is, has been or would be treated in a comparable situation’ (Article /78/EC)

20. Mangold (C-144/04) Justified?
‘legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary’
-> Principle of Proportionality
Legitimate aim?
-> Promotion of older workers in any kind of employments
Appropriate and necessary aim?
Disadvantage for older workers compared to the advantages referring the labour market?
Are there other and better means?

21. Mangold (C-144/04)
‘ [As the regulation] takes the age of the worker concerned as the only criterion […] is objectively necessary to the attainment of the objective which is the vocational integration of unemployed older workers, it must be considered to go beyond what is appropriate and necessary in order to attain the objective pursued. Observance of the principle of proportionality requires every derogation from an individual right to reconcile, so far as is possible, the requirements of the principle of equal treatment with those of the aim pursued (see, to that effect, Case C-476/99 Lommers [2002] ECR I‑2891, paragraph 39).‘

22. Mangold (C-144/04)
Is the fact that the period for the transposition into domestic law has not expired yet an obstacle to find a decision on the European level?
ECJ: The European Member States are not allowed to put new laws into force that are contrary to the aim of the Directive.

23. Palacios Case (C-411/05) What happened?
Mr. Palacios was notified of the automatic termination of his contract of employment when he turned 65.
He had reached the compulsory retirement age.
This measure was provided in a collective agreement and a national law authorized it.
Two conditions:
The workers concerned have completed the minimum period of contributions.
The other requirements laid down in social security legislation for entitlement to a retirement pension had to be satisfied.
Mr. Palacios fulfilled the last two conditions but wanted to keep on working. He went to the national Court.
The Court went to the ECJ and asked if Mr. Palacios was right.

24. Palacios Case (C-411/05) Discrimination? Justified?
Legitimate aim? Purposes of checking unemployment -> a public interest (+)
Appropriate and necessary means?
By means of better distribution of work between the generations
The social partners at national level enjoyed broad discretion in their choice. They compared different measures and then it was for their competence to find the right balance between the different interests involved.
The Court judged that the measure was appropriate and necessary.

25. Comparison of both cases
In both cases there were direct discriminations of older workers stated in national law.
In both cases the State wanted to change the structure of the labour market:
Reduce unemployment among older workers over 52.
Reduce unemployment among younger workers.
There is only a difference in the ‚Proportionality Test‘:
There was only the criterion ‚age‘ and a great disadvantage of older workers because of the lack of protection; the State did not compare different measures and chose the best one.
There was not only the criterion ‚age‘ but also the criterion of getting a pension; the State compared different measures and tried to find the right balance.

26. Our main goal should be to build a society for all ages.
What is the age issue in labour law really about? Is it all about non-discrimination?
My doubts: Can non-discrimination regulations solve all the recent problems? Should we really put that much energy in effective non-discrimination rules?
We need non-discrimination rules by the state because of capitalism and therefore the protecting of younger and older people.
But there has to be a huge change in the system because of the demographic change, e. g. in the pension system. The problem is (among others) the lack of acceptance among the population.
There has to be found a new way to compensate the ageing society regarding covering pensions, health care, long-term care, education and unemployment transfers.
Our main goal should be to build a society for all ages.

27. The circle is complete again 
What is the age issue in labour law really about? Is it all about non-discrimination?
Which role does non-discrimination regulations play regarding this concern?
Advantages of non-age-discrimination regulations:
a broader age diversity in companies -> greater knowledge within the companies and a better outcome
possibility of active ageing -> life long learning -> changing of employers’ opinion about older workers
better intergenerational relationships -> bigger acceptance of a change of the whole pension and health security system
In fact, non-age-discrimination regulations play a much bigger role regarding the building of a society for all ages than I thought in the beginning.
The circle is complete again 

28. What is the age issue in labour law really about
What is the age issue in labour law really about? Is it all about non-discrimination?
A look ahead:
In my opinion, because of the great role and its potential to change far more than only protecting the individual, non-age-discrimination rules shall be an effective ban on age-discrimination and not a rule open for vast exceptions.

29. Thank you for your attention!

30. Sources:
European Labour Law Network, 5th Annual Legal Seminar, “Labour Law in a Greying Labour Market” – Challenges of Active Ageing
European Commission, Age and Employment (superv. Mark Freedland), Publications Office of the European Union, 2011, available at <
Change of Retirement Age in Portugal, em
Charter of the Fundamental Rights,
Mangold Case, EN&mode=req&dir=&occ=first&part=1&cid=118427
European Commission, Eurostat, Active Ageing and Solidarity between Generations – A Statistical Portrait of the European Union 2012, Publications Office of the European Union, 2011, available at <