Kücükdeveci v Swedex GmbH und Co KG IDS Brief 896

K, who had been employed by Swedex since 1996 when she was 18, was dismissed in 2006. Under German law, periods of service completed before the age of 25 are not taken into account when calculating the statutory notice period. Swedex calculated the notice period as if K had only been employed for 3 years.

K challenged the legislation as being age discriminatory. The Higher Labour Court asked the ECJ whether the provision breached EU law. The ECJ held that German law afforded less favourable treatment to employees who start their employment before the age of 25 and so contained a difference of treatment of the ground of age contrary to Article 2(2)(a) of the Directive.

The Court then considered whether this treatment could be objectively justified. It decided that affording employers ‘greater flexibility in personnel management by alleviating the burden on them in respect of the dismissal of young workers, from whom it is reasonable to expect a greater degree of personal or occupational mobility’ was a legitimate aim. However, the legislation was not an appropriate means of achieving this aim, as it applied to all employees who joined the undertaking before the age of 25, whatever their age at the time of dismissal, thereby affecting young employees unequally.               Those who start work early after little, or no, vocational training are affected, whereas those who start work later after a long period of training are not.

The ECJ then went on hold that, although it had consistently held that a Directive cannot impose obligations on an individual and therefore cannot be relied on against an individual, K could rely on the obligations in the Directive in her claim against Swedex, another legal individual. The principle of non-age discrimination in the Directive is a specific application of the general principle of equal treatment in EU law. As such, it is for the national courts to ensure the full effectiveness of that law, disapplying any principle of national law contrary to that principle that cannot be interpreted in accordance with the Directive.

The decision could well pave the way for a challenge to UK legislation from both the private and public sector since the calculations for the basic award for unfair dismissal and statutory redundancy pay are based on age during each year of service and may also therefore be discriminatory on the grounds of age. It will then be for the Government to show a legitimate aim, such as  providing protection for older workers, but the question of proportionality would still need to be addressed.