France – agediscrimination.info
The French age discrimination legislation is thrown into relief in light of the most recent national measures on the employment of senior workers (derived from a national inter-industry collective agreement and a government policy on the employment of senior workers for 2006-2010) aiming at increasing the level of employment of the senior workers through:
- securing the career path,
- facilitating the redeployment of the senior workers,
- managing the end of the career.
Within such a context, the age discrimination provisions can be considered as a legal tool contributing to the redeployment of senior workers.
French discrimination law is constructed first and foremost on the basis of the principles of equality and freedom invoked in numerous fundamental constitutional and international texts.
Under French law, the age discrimination legislation is based on both labour law and criminal law provisions. Pursuant to these provisions, as a general principle, any distinctions justified by the age of the individual must be considered as illegal.
The legal scope of the prohibited discriminatory measures is very broadly defined: any distinctions based on age fall within the criminal law provisions whatever the distinction is, and any discriminatory measures, whether direct or indirect, fall within the labour law provisions governing the employment relationship. The labour law provisions cite areas where discrimination based on age can exist and those include recruitment procedures, access to training courses or inhouse training periods, disciplinary procedures, termination procedures, dismissal procedures, remuneration, profit sharing or share distribution, training, reclassification, assignment, qualification, classification, professional promotion measures or transfer or contract renewal.
There is no specific definition in national law of direct or indirect discrimination similar to that contained in the European Directives. However, the labour law provisions expressly includes the concept of indirect discrimination (although a specific definition is not provided) and the criminal definition of discrimination without being specific, includes the concepts of direct and indirect discrimination. Because it is of a sufficiently broad nature, the definition does not prevent the courts from recognising direct or indirect discrimination.
Furthermore, the French labour code prohibits internal company regulations from including provisions injurious to employees of equal professional ability in their work or employment on the grounds of age.
The legal provisions stated above have been enforced by a law dated November 16, 2001 implementing the EU anti-discrimination Directive.
Scope of application
The scope of the age discrimination laws (criminal law and labour law) does extend to all individuals.
More specifically, the labour law provisions cover all employees bound by a contract of employment and all the areas of the employment relationship are covered: the recruitment procedure, access to training courses or in-house training periods, disciplinary procedures, dismissal procedures, remuneration, profit sharing or share distribution, training, reclassification, assignment, qualification, classification, professional promotion measures, transfer, contract renewal.
It should be emphasized that the areas of the employment relationship listed by the labour law provisions in defining the areas where discrimination can exist are not exhaustive.
Identical provisions protecting public servants constitute the public sector counterpart to the above labour code provisions applicable to the private sector.
Furthermore, discrimination perpetrated by representatives of the public authorities is set out and made illegal by article 432-7 of the Criminal Code which refers to the general criminal provisions which establish the definition of discrimination.
It must be emphasised that all types of age discriminating measures fall within the scope of the legal provisions with no distinction concerning the age of the individual.
Enforcement
Both civil and criminal sanctions can be imposed in response to an illegal discriminatory measure.
Civil sanctions:
According to the law, any illegal discriminatory provision or act with regard to an employee shall be deemed legally invalid and considered as null and void.
More specifically, the law expressly considers that the dismissal of an employee following a discrimination law suit brought by or on behalf of the employee which is not justified by real and serious grounds and which appears to result from the law suit, must be considered as null and void.
In such a case the employee concerned must be reinstated and considered as never having left the company which shall in practice result in the payment of all remuneration and advantages he/she would have been entitled to as an employee between the termination date and the reinstatement date.
Furthermore, in the event the employee refuses to carry out his/her functions because of an illegal discriminating measure, he/she shall be eligible for damages equal to at least six months’ remuneration and to the severance payment provided by the law, the applicable industry collective agreement or the employment agreement.
With respect to the civil claims and regarding regulations governing proof, it must be pointed out that the law establishes an amendment to the burden of proof within cases brought before the labour courts: according to the legal principle of the reversal of the burden of proof, the affected individual is only required to present elements suggesting the existence of direct or indirect discrimination. In view of these elements it shall be up to the defending party to prove that its decision was justified by objective elements which exclude any discrimination.
Civil claims related to the employment relationship are brought before labour tribunals.
It should be emphasised that French law allows associations and unions to pursue claims. The labour code stipulates that the union may take any legal action on behalf of an employee regarding discrimination.
Furthermore, if requested by an employee, the union may also assist and represent him/her before a labour court or a social security court.
Finally, for anti-discrimination non-profit-making associations, French law acknowledges the possibility of such entities taking legal action.
Criminal sanctions:
Pursuant to the law, discrimination committed against a natural person is sanctioned by three years imprisonment and a fine of € 45,000 where the discrimination consisted of:
- obstructing the normal exercise of any given economic activity;
- the refusal to hire, to sanction and to dismiss a person;
- subjecting an offer of employment, an application for a course or a training period to a condition based on an age consideration.
It should be pointed out that the Criminal code created an individual criminal responsibility for legal entities and, in these circumstances, legal entities are also covered by the prohibition and sanctioning of discrimination.
Furthermore, a specifically dedicated independent administrative body has been created by the law of December 30, 2004. Any discrimination issue can be laid before this independent body through broadly defined ways of referral.
The body in question is empowered to deal with any direct or systematic discrimination on grounds related to age and it has been given powers to provide information, to undertake investigations and to provide advice. The body is also able to take legal action.
The anti-discrimination body is not empowered to impose sanctions.
Discriminations claims
According to the independent anti-discrimination body, an average of 15 claims per day are referred to it.
The main claims registered are grounded by the ethnic/natural origin (33%), the state of health or disability (15%) and the age (6%).
Almost half of the referred claims (40%) relate to the employment relationship.
Law suits brought before the labour courts are mainly subordinate claims even if an increased number of legal actions grounded by the trade unions activities are brought before the labour courts.
The claims brought before the labour courts are mainly grounded by the equal treatment general principle notably concerning the remuneration and the granting of specific advantages, and by the union activities.
Age discrimination claims are not so common and are usually used as additional claims in order to increase the alleged prejudice suffered by the employee.
“Trickiest” issues
According to the most recent evolution of the legislation aiming at increasing the level of employment of senior employees through specific measures to secure the career path, to facilitate the redeployment of senior employees, to manage the end of senior employees’ career, the trickiest discriminating risks identified relate to the recruitment and the dismissal of senior employees.
Retirement ages
Under French law, the retirement procedure must be considered as the only lawful measure for the termination of the contract of employment linked to an age consideration.
Within such a procedure, the termination of the contract of employment does not have to be objectively justified.
From a strict legal perspective, the retirement of the employee complying with the legal conditions is not considered as a dismissal.
In that regard, it is to be noted that any clause, pursuant to which the contract of employment is automatically terminated because of the age of the employee or his/her entitlement to a full state pension, must be considered as null and void.
The legal possibility for the employer to retire an employee (involuntary retirement) is defined by the law as the possibility for the employer to terminate the employment contract of an employee being at an age defined by the French social security law (65 years old) as being the age when the employee is eligible to a full retirement benefit within the state retirement system.
Accordingly, from a strict legal perspective, the employer’s legal right to retire an employee is not derived from the age of the employee but from the eligibility of the employee to the full retirement benefit within the French retirement system at the age of 65.
According to the law, industry collective agreements are legally entitled to derogate from the age condition for the retirement of an employee: the age for retirement can be fixed at between 60 and 65 years.
However, the retirement of the employee based on such a clause will be deemed to be valid only if the employee is entitled to a full state pension.
In that regard, it is to be emphasised that according to the most recent modification of the legislation such possibility to derogate will end during 2006.
In addition, the existing derogatory industry agreements must be revised in order to be rendered ineffective on December 31, 2009 at the latest.
It should also be noted that industry collective agreements as well as the contract of employment can fix an age for the retirement of the employee if it is more favourable than the legal provisions i.e. if it is over 65 years old.