Commercial Law for Employers: Equal Treatment (Age and Religion)

In this month’s ‘Commercial Law for Employers’ article, Kevin McVeigh, Partner and Head of the Corporate and Commercial Department in EDG Solicitors Belfast, considers two equal treatment cases. 

Kevin considers the case of Georg Stollwitzer v ÖBB Personenverkehr AG Case C-482/16 concerning age discrimination and Directive 2000/78/EC. The decision is noteworthy as upholds the right of members states to introduce laws which seek to eliminate age discrimination even if this results inadvertently in a disadvantage to certain workers.

Kevin also considers the case of Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV Case C-414/16 in which the claimant, of no denomination, argued taking religion into account in the recruitment procedure was discriminatory. The CJEU had to consider whether the rejection of her application amounted to a difference of treatment on grounds of religion within the meaning of Article 4(2) of Directive 2000/78.

Georg Stollwitzer v ÖBB Personenverkehr AG Case C-482/16

Key Issues: Social Policy – Equal Treatment - Age Discrimination

Case:  Georg Stollwitzer v ÖBB Personenverkehr AG

Reference: Case C-482/16, CJEU (First Chamber), 14 March 2018

Legislation: Directive 2000/78/EC

Mr Stollwitzer began working on 17 January 1983 for one of the predecessors in law of ÖBB. In view of the periods of service completed by Mr Stollwitzer before he took up his post, the reference date for the purpose of his advancement was established as being 2 July 1980. That reference date determines the pay grade in the pay scales within which a worker obtains, at regular intervals, advancement to a higher step. At that time, it was determined by calculating the periods completed before entry into service, though it did not include periods completed before reaching the age of 18. The period required for advancement was two years for all steps.

As regards ÖBB, in 2015 the Austrian legislature opted for a complete retroactive reform of the rules under which earlier periods of activity are taken into account, in order to eliminate discrimination on grounds of age. Mr Stollwitzer brought proceedings against ÖBB for an order that it pay him an amount corresponding to the difference between the salary he received between 2008 and 2015 and the sum which, in his view, would have been payable if the periods required for advancement had been calculated on the basis of the legal situation that existed before the retroactive reform of the rules.

The Landesgericht Innsbruck (Regional Court, Innsbruck) dismissed the claim, taking the view that the retroactive reform had put an end to all discrimination on grounds of age. As Mr Stollwitzer was unable to furnish proof of the periods of service, the calculation of the reference date for the purposes of remuneration did not in any way change in his case.

Mr Stollwitzer lodged an appeal against that decision before the referring court, the Oberlandesgericht Innsbruck (Higher Regional Court, Innsbruck, Austria). At the same time, he brought proceedings before the Verfassungsgerichtshof (Constitutional Court, Austria), at the conclusion of which that court declared the 2015 Federal Law on Railways compatible with the Austrian constitutional system.

The Verfassungsgerichtshof (Constitutional Court) indicated the reference dates for the purpose of the advancement of all the undertaking’s workers had been recalculated scrupulously. If a change to the reference dates for the purpose of advancement were to have the effect of placing some of those workers at a disadvantage, existing salaries would be maintained, in accordance with that law in order to ensure compliance with the principle of legitimate expectations.

In those circumstances, the Oberlandesgericht Innsbruck (Higher Regional Court, Innsbruck) decided to stay the proceedings and to refer a number of questions to the Court of Justice EU (CJEU) for a preliminary ruling.

Consideration by CJEU

According to the CJEU’s settled case-law, it is clear from the title of, and preamble to, Directive 2000/78, as well as from its content and purpose, that that directive is intended to establish a general framework for ensuring that everyone benefits from equal treatment in matters of employment and occupation by providing effective protection against discrimination based on any of the grounds referred to in Article 1 thereof, which include age.

In view of Member States’ obligations under EU law with regard to the eradication of discrimination on grounds of age when taking account of previous periods of activity and of the freedom enjoyed by the national legislature to restructure the salary scheme for ÖBB employees, the CJEU concludes that the change that had to be made to the law in force does not cease to be non-discriminatory by virtue of the fact that it does not have the effect of conferring a benefit on all workers. It is therefore clear, in that context, that the Austrian legislature did not exceed the limits of its powers in this field.

The CJEU held that:

Article 45 TFEU and Articles 2, 6 and 16 of Council Directive 2000/78/EC are to be interpreted as not precluding national legislation which, in order to end discrimination on grounds of age arising as a result of the application of national law that took into account, for the purpose of the categorisation of the employees of an undertaking within pay scales, only periods of activity completed after the age of 18, retroactively abolishes that age limit in respect of all such workers and allows only experience acquired with other undertakings operating in the same economic sector to be taken into account.

Why is this decision important?

Age discrimination is a growing area of employment law and one in which employers can easily experience a claim as a result of decisions which were intended to benefit the workforce. This decision upholds the right of members states to introduce laws which seek to eliminate age discrimination even if this results inadvertently in a disadvantage to certain workers.

Click here to read the full judgement: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62016CJ0482&from=EN   

Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV Case C-414/16

Key Issues: Social Policy – equal treatment - religion

Case: Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV

Reference: Case C-414/16, CJEU (Grand Chamber), 17 April 2018

Legislation: Directive 2000/78/EC

In November 2012 Evangelisches Werk published an offer of fixed-term employment for a project for producing a parallel report on the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. According to the offer of employment, the work to be done extended to accompanying the process for drawing up the country reports on that convention for 2012 to 2014; drawing up the parallel report to the country report on Germany, and observations and specialist contributions; project-related representation of the diaconate of Germany vis-à-vis the political world, the general public and human rights organisations, and collaboration in certain bodies; providing information and coordinating the opinion-forming process in relation to the association; and organisation, administration and reporting in relation to the work.

The offer of employment also specified the conditions to be satisfied by candidates. One of these read as follows:

‘We presuppose membership of a Protestant church or a church belonging to the [Working Group of Christian Churches in Germany] and identification with the diaconal mission. Please state your church membership in your curriculum vitae.’

Ms Egenberger, of no denomination, applied for the post offered. Although her application was shortlisted after a preliminary selection by Evangelisches Werk, she was not invited to an interview. The candidate who was eventually successful had stated with respect to his church membership that he was a ‘Protestant Christian active in the Berlin regional church’.

Since she considered that her application had been rejected because she did not belong to any denomination, Ms Egenberger brought an action before the Arbeitsgericht Berlin (Labour Court, Berlin, Germany), seeking for Evangelisches Werk to be ordered to pay her €9788.65 in accordance with German law. She argued that the taking of religion into account in the recruitment procedure, as was apparent from the advertisement of the post in question, was not compatible with the prohibition of discrimination in German law, if interpreted in accordance with EU law, and that the German law could not justify the discrimination of which she had been the victim.

Evangelisches Werk submitted that in the present case a difference of treatment on grounds of religion was justified under German law. The right to require membership of a Christian church was, in the view of Evangelisches Werk, covered by the churches’ right of self-determination. Such a right was consistent with EU law, by reason in particular of the provisions of Article 17 TFEU. Moreover, because of the nature of the activity to which the offer of employment at issue in the main proceedings related, membership of a church constituted a justified occupational requirement, having regard to the ecclesial self-perception of Evangelisches Werk.

The Arbeitsgericht Berlin (Labour Court, Berlin) allowed Ms Egenberger’s action in part. It held that she had been the victim of discrimination, but limited the compensation to €1957.73. After her appeal against that decision was dismissed by the Landesarbeitsgericht Berlin-Brandenburg (Higher Labour Court for Berlin and Brandenburg, Germany), Ms Egenberger brought an appeal on a point of law before the referring court, seeking payment of appropriate compensation. In those circumstances, the Bundesarbeitsgericht (Federal Labour Court) decided to stay the proceedings and to refer a number of questions to the Court of Justice EU (CJEU) for a preliminary ruling.

Consideration by CJEU

The CJEU noted that it is not disputed between the parties to the main proceedings that the rejection of Ms Egenberger’s application on the ground that she was of no denomination constitutes a difference of treatment on grounds of religion within the meaning of Article 4(2) of Directive 2000/78.

That said, in accordance with the settled case-law of the CJEU, in interpreting a provision of EU law it is necessary to consider not only its wording but also its context and the objectives of the legislation of which it forms part, and in particular the origin of that legislation.

The CJEU held that:

1.  Article 4(2) of Council Directive 2000/78/EC, read in conjunction with Articles 9 and 10 of the directive and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, where a church or other organisation whose ethos is based on religion or belief asserts, in support of an act or decision such as the rejection of an application for employment with it, that by reason of the nature of the activities concerned or the context in which the activities are to be carried out, religion constitutes a genuine, legitimate and justified occupational requirement, having regard to the ethos of the church or organisation, it must be possible for such an assertion to be the subject, if need be, of effective judicial review by which it can be ensured that the criteria set out in Article 4(2) of that directive are satisfied in the particular case.

2.  Article 4(2) of Directive 2000/78 must be interpreted as meaning that the genuine, legitimate and justified occupational requirement it refers to is a requirement that is necessary and objectively dictated, having regard to the ethos of the church or organisation concerned, by the nature of the occupational activity concerned or the circumstances in which it is carried out, and cannot cover considerations which have no connection with that ethos or with the right of autonomy of the church or organisation. That requirement must comply with the principle of proportionality.

3.  A national court hearing a dispute between two individuals is obliged, where it is not possible for it to interpret the applicable national law in conformity with Article 4(2) of Directive 2000/78, to ensure within its jurisdiction the judicial protection deriving for individuals from Articles 21 and 47 of the Charter of Fundamental Rights of the European Union and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.

Why is this decision important?

A religious organisation must be careful when requiring potential employees to be members of a particular religion. Although the organisation may have reasonable grounds for such a requirement, these can be challenged to ensure that the requirement is not discriminatory.

Click here to read the full judgement: http://curia.europa.eu/juris/document/document.jsf?text=&docid=201148&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=376602