In Dansk Jurist- og Okonomforbund v Indenrigs– og Sundhedsministeriet, under Danish law, a civil servant who is dismissed because his or her post has ceased to exist due to restructuring or reorganisation, continues to receive their current salary for three years. However, civil servants over the age of 65 are excluded.
The ECJ held that this amounted to direct discrimination because of age. While the law could be considered to be appropriate in the context of its aim which related to “legitimate employment policy and labour market objectives”, it could not be objectively justified on the basis that individuals would become eligible to draw a pension at age 65, so were less in need of such protection. There were less restrictive ways of achieving the aim; for example, entitlement could be opened up to civil servants aged 65 and over if they temporarily waive their right to receive a pension to be able to take up an alternative post. The law went beyond what was necessary to achieve the aim.
While previous ECJ cases have indicated that where there is alternative source of income, then using a particular age limit as a cut off point to achieve an aim would be proportionate, this ruling takes a different approach and shows how important it is for employers to have considered alternatives to remove or lessen any discriminatory effect.
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