Denmark – agediscrimination.info

The prohibition against age discrimination was enacted in Danish law in December 2004 in connection with the implementation of Directive 2000/78/EC of 27 November 2000. The directive was implemented through an amendment of the already existing Act on Prohibition Against Differential Treatment on the Labour Market. This Act also prohibits an employer from discriminating against employees on the basis of, race, colour, religion or belief, political opinion, sexual orientation, national, social or ethnic origin, and disability.

Only the Act on the Prohibition Against Differential Treatment on the Labour Market governs age discrimination in Denmark.

However, employers´ and employees´ organisations could agree to implement the prohibition against age discrimination through a collective bargaining agreement as long as the provisions on age discrimination in the collective bargaining agreement are not less favourable to the employee than those laid down in the Directive 200/78/EC of 27 November 2000.

It follows from the Act on Prohibition Against Differential Treatment on the Labour Market that employers are prohibited from discriminating when they are recruiting employees, during the employment relationship, and when dismissing employees.

Both direct and indirect discrimination are covered by the age discrimination prohibition. Harassment based on an employee’s age as well as instructions given to another person to discriminate against an employee on the basis of age are considered to constitute age discrimination.

The Act on the Prohibition Against Differential Treatment on the Labour Market lays down that age discrimination can only be justified in very few situations explicitly described in the act.

Who is covered?

All employees – regardless of the employees’ age – are covered by the prohibition against discrimination. For instance, if a 25-year old applicant for a position is rejected and the reason for this rejection is that the employer preferred a 28-year old applicant, and the decision to reject the 25-year old applicant was fully or partly based on age, the 25-year applicant could claim age discrimination under the act.

In accordance with its wording, the Act on the Prohibition Against Differential Treatment on the Labour Market only covers employees. However, at the moment, there is an ongoing discussion between employment law specialists about whether the act also protects the managing director of a company. The managing director of a company is not covered by ordinary legislation within the employment law area in Denmark. However, the Ministry of Labour has recently stated that the Act should be interpreted in such a way that also a managing director is protected against age discrimination. A number of employer organisations have, however, publicly stated that they disagree with the Ministry of Labour. It is therefore expected that case law will have to decide on this issue.

The Act on the Prohibition Against Differential Treatment on the Labour Market provides the Minister of Defence with the possibility of excluding the armed forces from the prohibition against discrimination based on age.

What enforcement/remedies exist?

An employer disregarding the prohibition against discrimination by indicating in job advertisements that employees of a certain age would be preferred can be fined (criminal sanction).

An employee being discriminated against can claim compensation. In the Act on the Prohibition against Differential Treatment no cap has been imposed on the amount of compensation. However, the amount of the compensation awarded by the courts in other discrimination cases has generally been small. Accordingly the level of compensation in age discrimination cases will probably not exceed an amount equivalent to 26 weeks’ pay. In order to obtain compensation, the employee is not required to demonstrate that a loss has been suffered. If an employee has suffered a loss (e.g. in connection with a dismissal based on a discriminatory ground), case law within the employment law area shows that it is not possible to be awarded damages.

How common are claims?

At the moment, there is still no case law in Denmark interpreting the newly implemented prohibition against age discrimination. However, some cases are pending before the courts, and it is therefore expected that the first case law will be available during 2007. It seems that age discrimination claims are not raised very often in the work place. However, part of the reason for this is probably that due to the economic situation in Denmark, only very few collective redundancies have been made on the Danish labour market during the last couple of years.

What claims are most common and what are the trickiest issues for employers?

It is expected that the most common claims will be the following:

1. Employees dismissed in connection with collective redundancies claiming that age was part of the reason for selecting them for dismissal. The employee organisations have often (before the implementation of the prohibition against age discrimination) claimed that in connection with collective redundancies it is primarily older employees who are selected for dismissal.
2. The individual dismissal of a well-paid salaried employee claiming that he or she was dismissed only because of the fact that the employer preferred a younger colleague for specific tasks.
3. Some cases within the area of employee benefits, since some employers undoubtedly still apply pay structures that are partly based on the age of the employees.

Are there any specific exceptions in your legislation?

Age discrimination can be justified in the following situations:

1. Already existing provisions (at the time of the enactment of the prohibition against age discrimination) in collective bargaining agreements on age limitations can be maintained on the condition that they are objectively and reasonably justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary.
2. If an employee under the age of 18 is covered by a collective bargaining agreement allowing payment of a lower pay to employees under the age of 18, the employment relationship is not covered by the prohibition against discrimination. This implies that the employer can prefer employees under the age of 18 when recruiting employees for these types of positions, and it also implies that the employer can lawfully dismiss the employee when the employee reaches the age of 18.
3. It is legal to fix a mandatory retirement age at 65 (or older) in both individual employment contracts and collective bargaining agreements.
4. Employers are allowed to impose special conditions as regards access to employment for older workers in order to promote their employment opportunities.
5. In order to protect children and young employees, certain age limitations on employment could be laid down by law.
6. The protection against discrimination based on age does not apply to young employees below the age of 15, unless the employment relationship is covered by a collective bargaining agreement.
7. An employer could apply for and be granted a specific exemption (by the minister responsible for the relevant area of business) if it is of decisive importance for certain areas of business that an employee is of a specific age.

It appears from the travaux preparatoires to the Act on the Prohibition Against Differential Treatment on the Labour Market that service related benefits are generally acceptable on the condition that the employer’s reasoning behind establishing the service related benefit has not been to treat unfairly the younger employees compared to the older employees.

Retirement age

In Denmark, it is legal to fix a mandatory retirement age at 65 (or older) in both individual employment contracts as well as in collective bargaining agreements. It will not be possible for a Danish employer to justify a mandatory retirement age below 65. However, already (at the time of the enactment of the prohibition against age discrimination) existing provisions on mandatory retirement ages below 65 in collective bargaining agreements can be maintained on the condition that it is objectively and reasonably justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary.

Interesting cases

In Denmark, there is still no case law, but as referred to above some cases are pending before the courts, and we can therefore expect that the first case law will be available during 2007.