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Dismissed employee wins age discrimination claim

A 28-year-old woman has won her age discrimination claim against her employer after the company refused to take account of all her years of service to calculate her redundancy notice period.

Seda Kücükdeveci had been working for German presentations material Swedex GmbH since she was 18 when she was made redundant in 2006.

In accordance with German law, her employer only took account of the years she had been with the company since aged 25, giving her one rather than four months’ notice.

The German government argued that the law allowing employers to not include years worked before an employee’s 25th birthday to calculate redundancy notice was intended to provide flexibility in personnel management.

It said the rule alleviated the burden on employers in relation to younger workers who were more personally and professionally mobile than older ones.

The European Court of Justice found in case C-555/07 Kücükdeveci v Swedex that this amounted to age discrimination contrary to the equal treatment directive (2000/78/EC).

German legislation on dismissal, the Luxembourg judges said, pursued a legitimate objective but was not an appropriate or necessary means to achieve it because it applied to all employees irrespective of their age at the time of dismissal.

The court added that while the directive could not be relied on directly by individuals involved in litigation, as in this case, it was for the national courts and tribunals to set aside any conflicting national law.

In a final section, the EU court said that national courts should not have to make a reference to the ECJ before they could disapply inconsistent national legislation.

“Solicitors’ Journal” 20 January 2010