An Advocate General of the European Court of Justice (ECJ) has considered whether an Italian business’ policy of engaging those under 25 on zero hours contracts amounted to age discrimination and found that it was not.
Opinions of Advocates General are published in ECJ cases prior to the court making a decision. They are designed to assist the court in reaching a verdict, but they are not binding on the court, which is entitled to reach a different view. While the AG’s view is not binding on UK courts, it often gives a great deal of interesting commentary which can be useful in the interpretation of EU law.
The employer, Abercrombie & Fitch Italia, was operating perfectly within national law. Italy has a curious 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 government policy, the government has been joined in legal proceedings to justify the policy.
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 (so allowing for initial and subsequent relevant experience on the job market, but not for stable employment).
The Advocate General considered that all of these aims were indeed legitimate for the purposes of justifying such a policy. 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 and therefore the AG’s findings on these points will be of interest to UK employers seeking to justify unequal treatment.
The use of zero hours contracts in the UK has come under increasing scrutiny in recent years and is one of the matters under consideration in the Taylor Review into Employment Practices in the Modern Economy. Mr Taylor has recently suggested that employers could be forced to pay premium rates for short-notice work in a bid to deter