The French age discrimination legislation is thrown into the spotlight in light of the most recent national measures on the employment of senior workers (derived from a national inter-industry collective agreement and a government policy on the employment of senior workers for 2006-2010) aiming at increasing the level of employment of the senior workers through:
securing the career path,
facilitating the redeployment of senior workers,
Within such a context, the age discrimination provisions can be considered as a legal tool contributing to the redeployment of senior workers.
French discrimination law is constructed first and foremost on the basis of the principles of equality and freedom invoked in numerous fundamental constitutional and international texts.
Under French law, the age discrimination legislation is based on both labour law and criminal law provisions. Pursuant to these provisions, as a general principle, any distinctions justified by the age of the individual must be considered as illegal.
The new law of May 27th, 2008 transposing European Directives into national law has introduced some new details into the discrimination legislation.
Firstly, there is now a specific definition in French law of direct and indirect discrimination, similar to the one contained in the European Directives and covering all types of discrimination, including the one based on age. Direct discrimination arises when an individual is treated less favourably on the grounds of age than another in a comparable situation. Indirect discrimination concerns apparently neutral measures, criteria or practices which may appear neutral but may confer a disadvantage on an individual compared to others, except if these measures, criteria or practices are objectively justified by a legitimate purpose and if the means used to achieve that purpose are necessary and appropriate.
Difference of treatment based on the age of the individual may not now be considered as discrimination when it is objectively and reasonably justified by a legitimate purpose – notably the need to safeguard the health and safety of the workers concerned, to favour their professional insertion and to ensure their redeployment and financial compensation in case of job loss – and when the means used to achieve this legitimate purpose are necessary and appropriate.
Furthermore, the French labour code prohibits internal company regulations from including provisions injurious to employees of equal professional ability in their work or employment on the grounds of age.
The legal provisions stated above have been enforced by law dated November 16, 2001 implementing the EU anti-discrimination Directive and another of May 27, 2008.
Since January 1st of 2010, any company which has more than 50 employees or which belongs to a group of companies employing more than 50 employees, and which are not covered by a collective bargaining agreement or by an action plan which provides measures in favour of seniors’ employment, will have to pay a tax (1% of all remuneration paid by the company)
Scope of application
The scope of the age discrimination laws (criminal law and labour law) extends to all individuals.
More specifically, the employment law provisions cover all employees bound by a contract of employment and all the areas of the employment relationship are covered: the recruitment procedure, access to training courses or in-house training periods, disciplinary procedures, dismissal procedures, remuneration, profit sharing or share distribution, training, reclassification, assignment, qualification, classification, professional promotion measures, transfer and contract renewal.
It should be emphasised that the areas of the employment relationship listed by the labour law provisions in defining the areas where discrimination can exist are not exhaustive.
Identical provisions protecting public servants constitute the public sector counterpart to the above labour code provisions applicable to the private sector.
Furthermore, discrimination perpetrated by representatives of the public authorities is set out and made illegal by article 432-7 of the Criminal Code. This refers to the general criminal provisions which establish the definition of discrimination.
It must be emphasised that all types of age discriminatory measures fall within the scope of the legal provisions with no minimum or maximum age limits on those protected.
Both civil and criminal sanctions can be imposed in response to an illegal discriminatory measure.
According to the law, any illegal discriminatory provision or act with regard to an employee shall be deemed legally invalid and considered as null and void.
More specifically, the law expressly considers that the dismissal of an employee following a discrimination law suit brought by or on behalf of the employee which is not justified by real and serious grounds and which appears to result from the law suit, must be considered as null and void.
In such a case the employee concerned must be reinstated and considered as never having left the company which shall in practice result in the payment of all remuneration and advantages he/she would have been entitled to as an employee between the termination date and the reinstatement date.
Furthermore, in the event the employee refuses to carry out his/her functions because of an illegal discriminatory measure, he/she shall be eligible for damages calculated according the length of service in the firm and the severance payment provided by law and the applicable industry collective agreement or employment agreement.
With respect to the civil claims and regarding regulations governing proof, it must be pointed out that the law establishes an amendment to the burden of proof within cases brought before the labour courts: according to the legal principle of the reversal of the burden of proof, the affected individual is only required to present elements suggesting the existence of direct or indirect discrimination. In view of these elements it shall be up to the defending party to prove that its decision was justified by objective elements which exclude any discrimination.
Civil claims related to the employment relationship are brought before labour tribunals.
It should be emphasised that French law allows associations and unions to pursue claims. The labour code stipulates that the union may take any legal action on behalf of an employee regarding discrimination.
Furthermore, if requested by an employee, the union may also assist and represent him/her before a labour court or a social security court.
Finally, for anti-discrimination non-profit-making associations, French law acknowledges the possibility of such entities taking legal action.
Pursuant to the law, discrimination committed against a natural person is sanctioned by three years imprisonment and a fine of €45,000 (article L225-2 of the Criminal Code) in cases where the discrimination involved :
Refusing to deliver services or goods
obstructing the normal exercise of any given economic activity;
the refusal to hire, to sanction and to dismiss a person;
refusing an application for employment, or an application for a course or for a training period on grounds based on age consideration.
It should be pointed out that the Criminal code also created an individual criminal responsibility for legal entities and, in these circumstances, legal entities are also covered by the prohibition and sanctioning of discrimination. In such cases, a company may be sentenced to a fine of €225,000 and to possibly some additional sanctions, namely the dissolution of the legal entity, the publication of the judgement, the ban of the exercise of a determined professional activity, and the closure of the company’s entities.
A law dated 31 March 2006 has accepted that “testing methods” (random testing in the form of a survey for example) can be legally used in order to bring evidence of the discrimination in court.
Furthermore, a specifically dedicated independent administrative body has been created by the law of December 30, 2004, which is literally the “High Authority against Discrimination and in favour of Equality” (HALDE) Any discrimination issues can be laid before this independent body through broadly defined procedures of referral.
The body in question is empowered to deal with any type of discrimination on grounds related to age (direct or indirect) and it has been given powers to provide information, to undertake investigations and to provide advice. The body is also able to take legal action.
The anti-discrimination body is not empowered to impose sanctions.
According to the independent anti-discrimination body, an average of 6,222 claims per year are referred to it.
The main claims registered are founded on ethnic/natural origin (27%), state of health or disability (22%) and age (6%).
Almost half of the referred claims (50%) relate to the employment relationship, and more specifically to discrimination linked to certain career issues.
Law suits brought before the labour courts are mainly subordinate claims even if an increased number of legal actions grounded by trade union activities are brought before the labour courts.
The claims brought before the labour courts are mainly grounded by the equal treatment general principle notably concerning the remuneration and the granting of specific advantages, and by the union activities.
Age discrimination claims are not so common and are usually used as additional claims in order to increase the alleged prejudice suffered by the employee.
According to the most recent legislation aiming at increasing the level of employment of older employees through specific measures to secure the career path, to facilitate the redeployment of senior employees and to manage retirement, the trickiest discriminatory risks identified relate to the recruitment and the dismissal of senior employees.
From a strict legal perspective, the retirement of the employee complying with the legal conditions is not considered as a dismissal.
In that regard, it is to be noted that any clause, pursuant to which the contract of employment is automatically terminated because of the age of the employee or his/her entitlement to a full state pension, must be considered as null and void.
The legal possibility for the employer to retire an employee (involuntary retirement) is defined by the law as the possibility for the employer to terminate the employment contract of an employee being at an age defined by the French social security law (65 years old) as being the age when the employee is eligible to a full retirement benefit within the state retirement system.
Accordingly, from a strict legal perspective, the employer's legal right to retire an employee is not derived from the age of the employee but from the eligibility of the employee to the full retirement benefit within the French retirement system at the age of 65.
According to the law, industry collective agreements were legally entitled to derogate from the age condition for the retirement of an employee: the age for retirement could be fixed at between 60 and 65 years but this derogation is not valid anymore since 23 December 2006 (for the collective agreements).
However, the retirement of the employee based on such a clause is still valid until 31st December 2008 but is accepted only if the employee is entitled to a full state pension.
Since 11 October 2007, this “involuntary retirement” had already lost its attraction since the indemnity paid by the employer is from thereon taxable (25% between 11 October 2007 and 31 December 2008 and 50% after this date).