Brussels, 10/12/2012 (Agence Europe) - The directive on equal treatment in employment and occupation (2000/78/EC), which prohibits discrimination on grounds of age does not oppose measures in a differentiated social plan to calculate redundancy payments on the basis of age and reduces redundancy payments for workers who are close to retirement age. Nonetheless, taking early retirement due to disability when measuring this reduction is discrimination that goes against this very directive banning discrimination based on disability.
These are the two main features of the decision made on 6 December by the European Court of Justice, in answer to the questions put to it by the Employment Court, Munich (C-152/11). An employee of Baxter Deutschland GmbH, aged over 54 and seriously handicapped, took his case to the German court. In compliance with a social plan applied by the company, the employee received redundancy when he lost his job based on age but which was less than he could have claimed if he had been under 54.
The social plan deemed that given that the worker was able to receive earlier retirement based on disability, it was this date that had been taken into account.
The interested party considered that the redundancy payment was discriminatory because of his age and disability and took Baxter to court. The German court therefore wanted to know whether any unequal treatment had occurred resulting from the social plan and whether this was compatible with the above-mentioned directive.
On the first consideration (discrimination due to age), the ECJ explains that different treatment can be justified by the objective of granting future compensation to protect younger workers and help towards their professional rehabilitation, whilst taking to account the need for a fair distribution of limited financial resources at a social level. It also seeks to prevent redundancy payments not benefiting people who are not searching for another job but who will receive a substitution income in the form of a retirement pension.
With regard to the second question (discrimination based on disability), the ECJ ruled that a regulation that results in a payment to a seriously disabled worker but is lower than that granted to a worker without disability fails to take into account the risk that seriously disabled people are subject to (greater difficulty in getting back on the job market) rather than the fact that this risk increases as the age of retirement approaches. (FG/transl.fl)