Norrbom Vinding
Overview
The prohibition against age discrimination was enacted into Danish law in December 2004 in connection with the implementation of Directive 2000/78/EC of 27 November 2000 (the “Directive”). The Directive was implemented through an amendment to the existing Danish Anti-Discrimination Act, which prohibits employers from discriminating against employees on the grounds of race, colour, religion or belief, political opinion, sexual orientation, national, social or ethnic origin and disability.
The Danish Anti-Discrimination Act is the only legislation on age discrimination in Denmark.
Employer and employee organisations are free to include the prohibition against age discrimination in collective bargaining agreements so long as the resulting provisions on age discrimination do not prejudice the employees’ rights under the Directive.
Under the Danish Anti-Discrimination Act, employers are prohibited from discriminating based on age in recruitment, during employment and when dismissing.
The prohibition against age discrimination covers direct as well as indirect discrimination. In this context, harassment on the grounds of age and instructing others to discriminate on the grounds of age constitute age discrimination within the meaning of the Danish Anti-Discrimination Act.
Under the Danish Anti-Discrimination Act, age discrimination may be justifiable only in a few situations that are specified in the Act.
Who is covered?
All employees – regardless of age – are covered by the prohibition against age discrimination. For instance, if a 25-year-old person applies for a job but is rejected because the employer preferred a 28-year-old applicant and the decision to reject the 25-year-old applicant was fully or partly based on age, the 25-year-old applicant may claim age discrimination under the Danish Anti-Discrimination Act.
The Danish Anti-Discrimination Act is applicable to employees only. However, it is a subject of much discussion between employment law specialists whether the protection afforded by the Act extends to managing directors. Managing directors are not covered by ordinary employment legislation in Denmark. However, the Danish Ministry of Employment has announced that the Act should be interpreted to also protect managing directors against age discrimination, but a number of employer organisations have subsequently voiced their disagreement with the announcement of the Danish Ministry of Employment. It is therefore expected that this issue will have to be decided by the courts.
The Danish Anti-Discrimination Act provides the Danish Minister for Defence with the option of excluding the armed forces from the prohibition against age discrimination.
What enforcement/remedies exist?
The courts can impose a fine on employers who disregard the prohibition against age discrimination by stating in job advertisements that applicants of a particular age will be preferred. This is a criminal sanction.
Employees suffering age discrimination at work are entitled to compensation. The Danish Anti-Discrimination Act does not put a cap on the amount of compensation which may be awarded. Employee organisations are putting pressure on the level of compensation by generally claiming compensation amounts of up to 18 months’ salary in the cases currently pending before the courts. The compensations awarded have however generally amounted to 6-12 months’ salary in cases of dismissal and DKK 25,000 in cases where the discrimination has taken place in connection with a recruitment situation.
In a discrimination claim, the employee is not required to demonstrate a loss in order to be awarded compensation, and employment case law shows that even if an employee has suffered a loss (e.g. as a result of a dismissal based on discriminatory grounds), no damages are awarded.
How common are claims?
Case law is still limited. However, a number of claims are pending before the courts, and generally it seems that the number of claims is increasing rapidly at the moment.
What claims are most common and what are trickiest issues for employers?
The most common claims relate to the following:
Employees affected by collective redundancies claiming that age was part of the reason for making them redundant, and employees claiming that they were discriminated against in the recruitment situation.
Are there any specific exceptions in your laws?
Age discrimination may be justifiable in the following situations:
· Existing provisions (i.e. provisions already in force when the prohibition against age discrimination was implemented) on age limits in collective bargaining agreements can be maintained provided that they are objectively and reasonably justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary.
· If an employee under the age of 18 is covered by a collective bargaining agreement allowing payment of a lower salary to under-18s, the employment is not covered by the prohibition against age discrimination. This means that the employer may prefer applicants under the age of 18 for these types of jobs and that the employer may dismiss the employee when the employee reaches the age of 18.
· Individual employment contracts and collective bargaining agreements may stipulate that retirement is mandatory at 70 years of age (or older).
· Employers are allowed to implement special measures to promote job opportunities for seniors.
· In order to protect children and young people, lower age limits on employment may be laid down by law.
· The protection against age discrimination does not apply to under-15s unless the employment is covered by a collective bargaining agreement.
· Employers may apply for and be granted a specific exemption (by the relevant minister) if it is crucial in specific professions that an employee is of a particular age.
According to the explanatory notes to the Danish Anti-Discrimination Act, benefits provided on the basis of length of service are generally acceptable so long as the employer’s reasoning for providing such benefits was not to discriminate against younger employees.
Retirement age
With effect from 1 January 2008, the compulsory retirement age laid down in the Danish Anti-Discrimination Act was raised from 65 to 70.
As a result of this amendment, individual employment contracts which stipulate a compulsory retirement age below 70 are invalid and unenforceable. This applies to employment contracts entered into before as well as after 1 January 2008. Consequently, it will be necessary to change all employment contracts which set out a compulsory retirement age below 70.
It is not possible for a Danish employer to justify a compulsory retirement age below 70 in individual employment contracts.
A compulsory retirement age below 70 stipulated in collective bargaining agreements entered into after 28 December 2004, but before 1 January 2008, will be effective until the date on which the collective bargaining agreement in question can be terminated.
A compulsory retirement age below 70 (and even below 65) stipulated in collective bargaining agreements concluded before 28 December 2004 will continue to apply provided that the provisions are objectively and reasonably justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary.
Interesting cases
In Denmark, case law is still relatively limited but, as described above, a number of cases are pending before the courts. Amongst others, a case regarding the legitimacy of a (previous) compulsory retirement age (of 65) has been brought before the Danish Western High Court, arguing that a compulsory retirement age of 65 is in contravention of Directive 2000/78/EC of 27 November 2000. Further, it could be mentioned that the Danish Eastern High Court is expected to give its ruling on 30 June 2010 in a case concerning the exemption in the Danish Anti-Discrimination Act regarding under-18s. An employee organisation has claimed that the exemption in the Act regarding under-18s is in contravention of Directive 2000/78/EC of 27 November 2000. Whatever result the Danish Eastern High Court will reach, it is however expected that the decision will be appealed to the Danish Supreme Court.