EELC Academic Board Review 2021: Age and religious discrimination

Daiva Petrylaitė, Vilnius University, Lithuania.

Age discrimination

In 2021, courts had to deal with age discrimination situations relating to the consequences of containment of the 2008 economic crisis.

In its judgment of 15 April 2021 (C-511/19, AB – v – Olympiako Athlitiko Kentro Athinon – Spyros Louis) on whether the Greek ‘labour reserve system’ led to indirect discrimination, the ECJ ruled that the scheme had made it possible to maintain, rather than dismiss, public sector workers close to retirement during the economic crisis. That had also helped to avoid the dismissal of younger workers and ensure a balanced age structure within the public sector. That allowed the Court to hold that the application of the labour reserve system in the context of the Greek financial crisis had not been contrary to the EU law – the difference in treatment on grounds of age established by that scheme pursued a legitimate labour policy objective and the means of achieving that objective were appropriate and necessary.

The legislation triggered by the 2008 economic crisis has also fallen under the scrutiny of national courts. The Court of Appeal of the UK (EELC 2021/4) held that the financial resources situation which made it necessary to apply a progressive pay reduction system to all employees (in the case in question, probation officers) was justified and proportionate. The Court found no indirect discrimination on grounds of age in the present case and stressed that such an assessment was supported by the circumstances of the case and by the fact that the pay system at issue was applied on a fixed-term basis and to all employees.

Taken together, these two judgments suggest that the stability of public finances, the objectives sought by the introduction of social policies and labour market stability, as well as the universality of the restrictive measures in relation to the subjects (employees), are the arguments justifying certain legal restrictions which are indirectly linked to the age criterion.

The ECJ has ruled on a significant number of age limit cases in order to uphold certain positions. The Court ruled on the matter last year when it was asked to determine the legality of the maximum age requirement for candidates to notarial positions. In its judgment of 3 June 2021 (C-914/19, Ministero della Giustizia – v – GN), the ECJ reiterated that, within the meaning of Article 6(1) of Directive 2000/78, a difference of treatment on grounds of age does not constitute discrimination if, within the context of national law, it is 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. Considering the facts of the case, the Court had not identified any circumstances justifying the provisions of the Italian national law imposing an age limit on access by candidates to the notarial profession. The Court noted that there was no evidence and no circumstances to justify that limit in the context of Article 21 of the Charter of Fundamental Rights of the European Union and Article 6(1) of Directive 2000/78. The Court took the view that this legislation did not, inter alia, pursue the aims of ensuring the stability of the profession of notaries before retirement and of facilitating the turnover and rejuvenation of that profession. Accordingly, the Court stressed that the age limit went beyond what was necessary to achieve the legitimate aim.

A summary of the cases on non-discrimination on grounds of age should also take note of the ECtHR case (Mile Novaković – v – Croatia app. no. 73544/14) which decided on the issue of lawfulness of the dismissal of a teacher of Serbian nationality on the grounds of their lack of proficiency in Croatian. Although the Court did not examine the applicant’s (teacher’s) complaint of discrimination (Article 14 of the European Convention on Human Rights), it did, however, consider the circumstances related to the interpretation of the applicant’s age in its position on the applicant’s right to private life (Article 8 of the Convention). The Court ruled that the authorities had dismissed the teacher without considering any alternatives such as training. The Court also noted that neither the school nor any of the domestic courts had ever provided a detailed and convincing explanation as to why the applicant’s age would have been an insurmountable impediment to them adjusting their teaching plan so that they could teach in standard Croatian. Therefore, the Court held that relying solely on the applicant’s age and years of service, the authorities had applied the most severe sanction, thereby significantly interfering with their rights and that Article 8 of the Convention had been violated.

Religious discrimination

In a judgment of 15 July 2021 (Joined Cases C-804/18 and C-341/19, IX – v – WABE eV and MH Müller Handels GmbH – v – MJ) the ECJ gave a ruling concerning the legality of the instruction given by the employers to their employees not to wear, in the workplace, any conspicuous, large-sized political, philosophical or religious signs and concerning the potential discrimination of such instruction on grounds of religion. The Court set out the following evaluative arguments that can justify such instructions in the workplace: (i) the requirement to observe a neutral dress code must be applied equally to all employees, without distinction between individual employees; (ii) such a requirement may be justified by the employer’s desire to pursue a policy of political, philosophical and religious neutrality with regard to its customers or consumers, in order to take account of their legitimate expectations; (iii) the employer must justify the objective necessity of its neutrality policy in each specific case, in particular on the basis of Article 16 of the Charter of Fundamental Rights of the European Union; and (iv) the employer’s policy must be systematic and consistent, and the prohibitions must only be applied insofar as they are strictly necessary and proportionate to the objective pursued by the neutrality policy.

As regards the compliance of employees’ dress requirements with the employer’s declared policy of neutrality, the ECJ Achbita judgment (Case C-157/15), which has been mentioned and analysed by EELC on several occasions, has also received much attention. The so-called Achbita saga lasted until 2021. After the ECJ ruling, the case was referred to the Labour Court of Appeal of Ghent. On 12 October 2020, this Court ruled in favour of the employer (EELC 2021/14). The Court concluded that the general and undifferentiated neutrality policy of the employer did not adversely affect a protected group of persons as holders of a specific religion for which wearing a religious symbol would be important or even compulsory. According to the EELC contributor Gautier Busschaert, this finding of the Court does not contradict the Achbita ruling. However, as far as the employer’s neutrality policy was concerned, the Belgian Court disregarded the requirement of the ECJ to ‘take into account the interests involved in the case’ having regard to all the material in the file, without giving any further direction in that respect. After a rather formal assessment of the situation, the national Court thus found that there was no indirect discrimination in the case at issue and, contrary to the ECJ, did not consider that the employer had an obligation to provide the employee with an alternative job position. This judgment has fuelled much debate not only in Belgium but also in other EU Member States and has demonstrated once again that religious discrimination issues and their assessment in the context of both EU and national law as well as case law remain controversial and each judgment so far has added more legal issues that are open for discussion.