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Age Discrimination: Advocate General Opinion

Abercrombie and Fitch v Bordonaro

Advocate General Bobek has advised that it is possible for a Member State to provide that individuals under the age of 25 can be employed on zero hour contracts, whilst restricting such contracts for individuals over that age.

However, he was of the opinion that whilst facilitating recruitment of younger workers may be legitimate aims, he was not convinced that dismissal at the age of 25 was justified.

The Claimant in this case was employed by the clothes store Abercrombie & Fitch in Italy under a zero hour contract. When he reached the age of 25, his name was no longer included in the work rota and he was told this was because of his age. According to Italian legislation, employees under the age of 25, and above the age of 45, can be employed under zero hour contracts. However, those between 25 and 45 can only work under such contracts in certain and limited circumstances.

The Claimant alleged this to be direct age discrimination and a reference was made to the CJEU.

The Advocate General Bobek emphasised that it is for the national courts to decide whether discrimination exists and any objective justification to support such a finding, however guidance was given as follows:

  1. ‘Less favourable treatment’ is determined by a comprehensive, global assessment of the rule’s impact.
  2. Promoting employment and facilitating recruitment of younger workers may be legitimate aims.
  3. The more legitimate aims raised, the harder necessity becomes to determine. 
  4. Justification requires probative evidence, not mere generalisations.
  5. The Advocate General was not convinced dismissal at 25 was justified, so younger workers had greater employment opportunities.

Although the Advocate General's opinion is not binding, it is usually followed by the CJEU and could have a significant impact on its decision.

CONTACT CHRIS

If you would like more information or advice relating to this article or an Employment law matter, please do not hesitate to contact Chris Cook on 01727 798089.

© SA LAW 2017

Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.

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