In April we reported on a pending ECJ case which considered the question of whether an Italian business’ policy of automatically dismissing zero hours workers at age 25 was discriminatory. A final decision has been given in the case, with the ECJ deciding that the policy was not discriminatory.
The employer, Abercrombie & Fitch Italia, implemented an Italian law which sets out that employers can only use zero hours contracts for those aged under 25 and over 45. The claimant in this case, Mr Bordonaro, worked under a zero hours contract until he reached 25, at which point he was dismissed by A&F as they could no longer legally employ him on those terms. He claims that this policy amounted to age discrimination and was therefore unlawful under EU law. As this was a challenge to government policy, the Italian government joined the legal proceedings to justify their policy.
In the UK as well as Italy, age is the only protected characteristic where both direct and indirect discrimination can be justified (in all other cases only indirect discrimination can be justified). Justification involves showing that the treatment is a proportionate means of achieving a legitimate aim. The legitimate aims put forward by the Italian government were:
- Promoting flexibility in the job market.
- Fostering access to the labour market for young people.
- Providing the first employment opportunity for younger persons.
The Court was particularly swayed by the government’s arguments and found that these aims were legitimate. The court further held that the policy was an appropriate and necessary means of achieving the legitimate aim, because:
- employers may be encouraged to hire younger workers if they know that they can do so using more flexible, and cheaper, contractual arrangements than the norm;
- in the context of a labour market in difficulty such as the one in Italy, it is preferable for a younger person to have flexible and temporary work than be unemployed; and
- If the ability to automatically dismiss people when they reach age 25 did not exist, meaning that the employer had to keep employing such people, the employer would not be in a position to offer work to new, under-25, workers.
This case is of interest to UK employers on a couple of fronts. Firstly, although there is no statutory age restriction on the use of zero-hours contracts in the UK, these aims could have application in other age discrimination cases where an employer seeks to justify unequal treatment of young workers.
Secondly, as a tangential point, the court had to determine whether Mr Bordonaro was a worker and therefore qualified for protection. It found that the fact he had worked three to five times a week was sufficient to establish regular hours, meaning his work could not be described as marginal or ancillary. It is possible that purportedly self-employed contractors could rely on this principal to aid them in establishing worker status.