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The Equal Treatment Commission (CGB) recently published its opinion on age discrimination in social plans. The opinion shows that the CGB assesses age discrimination in social plans less strictly than in other cases of age discrimination.
Does this mean that age discrimination in social plans will be allowed from now on?
Summarized, the Equal Treatment in Employment (Age Discrimination) Act (WGBL) does not permit age discrimination in or at entering into employment relations.
Age discrimination for instance also includes the granting of extra holiday leave to older employees (the “age-related leave”). Age discrimination is allowed only if “justified from an objective perspective”.
This will not be easily assumed: the discrimination has to serve a legitimate purpose and the means applied must be suitable and necessary.
Many employment contracts and staff handbooks include age-related provisions which, according to the CGB, are not able to stand the test of criticism (which e.g. goes for age-related leave).
Also, most social plans include schemes that contain age-discriminatory provisions.
In its opinion, the CGB set the outlines against which it assesses such schemes.
First and foremost, the CGB holds that older employees have a vulnerable position in the job market.
Often enough, the purpose of age-related schemes in social plans is to protect older employees in respect of that vulnerable position.
The CGB considers this a legitimate purpose in and of itself.
However, the CGB does hold that age-related schemes in social plans should be more focused on the chances of older employees to get a new job instead of focusing on their restrictions or poor chances.
In age-related schemes, this could for instance be done by devoting extra attention to career guidance, retraining, and the like.
For that matter: It is not allowed not to have older employees be eligible for training and career guidance or outplacement at all.
The next level is whether a means selected for a social plan is suitable and necessary.
This in any event applies to using the “County Court Formula” –by virtue of which, in summary, higher severances are awarded to employees above 40 and 50- when determining severances.
In doing so, more refined age categories (so: varying from the formula) can be applied.
It is also possible to include a separate severance scheme for older employees (e.g. supplements to their income/benefit rather than a one-off severance).
However, the social plan is to state proper reasons why in respect of a specific scheme a choice was made for setting specific age categories and those age categories are to be linked as much as possible to the actual situation pertaining to the employability of the group of older employees covered by the scheme.
Hence, specific social plan schemes for older employees are permitted, provided that it is clear that the purpose of such schemes is to promote the chances of older employees to find a new job.
In doing so, it is essential that the emphasis is on the prospects of the older employees, and that proper reasons are stated why a particular scheme was selected.
For more information on the subject, please contact Elisabeth Monteiro Rodrigues,
Employment Practice.
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