Discrimination

European legislation

Under the influence of European legislation the legal prohibition on discrimination, as embodied by the Constitution, takes more concrete shape. Although discrimination is not often used as first choice for legal ground in legal procedures, more and more individuals find their way to the Netherlands Institute for Human Rights. There they submit a question whether a case of discrimination can be constituted, looking at the meaning of the Constitution.

Transition scheme only for the elders… covert discrimination?

This was also the case with an association for the promotion of medicine which wanted to change its labour conditions. Previously a transition scheme existed for all employees who were entitled to transition compensations after the end of their service. The association introduced a new scheme at the 1st of January 2009 in which they abolished the transition scheme for all employees under the age of 52 years. For all older employees the scheme was maintained on which the question was raised whether this distinction was prohibited.

Equal Treatment Act

The ETA stipulates that discrimination on the grounds of age is prohibited when labour conditions are determined. Because a transition scheme is a labour condition that means that the claim against the current scheme can be investigated.

Legitimate purpose, suitable and necessary

Based on the law and evolved case law discrimination on the grounds of age only is allowed when that distinction can be justified objectively, with a legitimate purpose and when the measures to achieve that purpose are suitable and necessary.

Legitimate purpose?

The Institute examines firstly whether a legitimate purpose exists. The association in this case indicated that the purpose of the scheme is too protect older employees when becoming unemployed, because their position on the labour market is relatively weak. They often have more trouble with finding a new job, compared to the younger employees. It seems that the purpose of the scheme does not contain discriminative tenses.

Suitable?

The second question which must be answered it whether the scheme is also suitable. In this case that was the case, according to the Institute. Older employees are being more protected then younger employees.

Necessary?

There was however a third question to be answered and that was whether the discrimination was necessary in order to protect the older employees. In other words: is it not possible with other measures to protect the older employees? The Institute did not see such possibilities and could also hardly see the point that a different scheme would be less radical.

Proportional?

The last question deals with the proportionality of the scheme. Is the extent of the scheme in proportion to the purpose it serves? In the context of the answer to that question it is assessed what the concrete situation in the company was. Out of this analysis it was concluded that only 15 employees were entitled, based on the new scheme. Were these people disappearing or did they go with pension? Because they went out of service or retired they could not be entitled any longer to the transition scheme, which would make the situation completely equal once again. The scheme was therefore only be used for a very small group and therefore it was not disproportional. This would have been different when 2 or 3 younger employees would not have had the possibility to be entitled to the scheme and 95% of the company would have.

This judgment gives a good insights in the way a discrimination case is being dealt with. It happens more often than you think unfortunately.

E.g. discrimination on the grounds of age (retirement as pilot when 57 years old, to transition scheme for younger employees or retirement age workers), gender (not being hired or no contract extension during pregnancy, worse labour conditions for flexible workers) or a handicap (obese and working in a daycare). It happens more often than you think.

You can do something about this. Not only can you ask for a judgment at the Institute for Human Rights, you can also go to the district judge to claim restoration of the employment or a claim for a compensation. When you think you are dealing with discrimination in your work environment and want more information, please contact Suzanne van Dijsseldonk of SMART Advocaten.