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EUROPEAN REVIEW
ISSUE 39 - Page 6
Age
discrimination: can EU laws lead to greater job opportunity?
EU directives against discrimination at
work, which took full effect in Member States last year, were designed
to help more people to find rewarding jobs as the working-age
population declined. Yet the way in which they are applied may affect
the success of this aim.
As well as seeking to ensure
fairness between individuals in the sphere of employment, the framework
directives passed in 2000 were based on the knowledge that the
population of Europe, after a very slow increase, would begin to
decline after 2025. More to the point, those of working-age (15-64) are
forecast to reduce their number by about 21 million between 2005 and
2030. The European Commission therefore saw it as essential that groups
such as young people, ethnic minorities, women and older people, who
had lower percentages in work, be encouraged to join the labour market.
One way of ensuring this was to remove discrimination against these
sections of society. However there is some evidence that the provisions
on age are being applied more loosely than the rest of the package.
Discrimination based on sex or race immediately identifies a group who
need legal protection but everyone begins working life as a ‘young
person’ and hopes to finish as an older one. Differences based on age
are much more widely accepted by society and this has already been
reflected in some European Court of Justice opinions. In a case from
Spain the advocate general ruled that national legislation, which
allowed collective agreements to specify a compulsory retirement age,
was lawful as anti-discrimination directives made exceptions for
‘legitimate employment policy, labour market and vocational training
objectives’. Similarly an action by an Austrian EU staff member who
alleged that the pension scheme was less favourable to older recruits
was dismissed on the grounds that, unlike sex discrimination ‘equal
treatment irrespective of age is subject to very numerous
qualifications and exceptions’.
Both these opinions have yet to be ratified by the whole court but, if
they are, it seems that some forms of anti-discrimination will be more
equal than others.
BASED ON
ARTICLES IN EQUAL
OPPORTUNITIES REVIEW
Recent rulings from
the European Court of Justice
‘Vaxholm’
case opinion backs unions
The long-awaited decision by the
European Court of Justice (ECJ) on the important Vaxholm case has
reached the stage of an opinion given by the advocate general. Usually
followed by the whole court in its final ruling, the opinion largely
backs the Swedish building union in its contention that Latvian company
Laval should have paid its workers at Swedish rates while they built a
school near Stockholm. The court adviser decided that the EU’s internal
market rules do not prevent trade unions from using collective action
‘to compel a service provider of another member state to subscribe to a
rate of pay’ as long as they are motivated by ‘by public-interest
objectives, such as the protection of workers and the fight against
social dumping’.
‘Viking’ opinion also
favourable
In the same week another
much-discussed case came to the same stage as ‘Vaxholm’. In the
‘Viking’ action a ferry company, having attempted to reflag a Finnish
ship as Estonian so that it could employ an Estonian crew at lower pay
rates, won an injunction to stop the International Transport Workers'
Federation (ITWF) taking industrial action. The ITWF and the
Finnish Seamen’s Union appealed to the ECJ. Advocate general Maduro
ruled that unions were not precluded from taking action which might
stop a relocation of jobs from one EU Member State to another.
Irish age
discrimination case: lessons for UK?
A job applicant has won an age
discrimination case, before the Irish Equality Tribunal, against a
recruitment agency who asked questions such as ‘age’, ‘number of
children’ and ‘date of birth’ as part of the selection process. Paul
Cunningham gave an incorrect answer as to his age and refused to give
his date of birth as he thought the questions ‘irrelevant and
invasive’. BMS Sales Limited refused to process his application despite
his suitability. Mr. Cunningham was awarded €5,000.
