Previous experience requirement not age discrimination

Excluding employees’ years of service with a sister company for the purposes of pay and promotion with another company in the same group does not amount to age discrimination, the European Union Court of Justice has ruled.

Cabin crew at Tyrolean Airways brought the claim after the parent company, Austrian Airlines Group, refused to take account of their time with subsidiaries Austrian Airlines and Lauda Air.

Tyrolean Airways’ contractual terms provided that employees would only be considered for promotion and pay rises after three years with the company.

In a claim brought by their works council, the workers argued that because their previous experience with other Austrian Airlines Group companies was “substantively identical” it should count towards their three years with Tyrolean.

The Luxembourg judges agreed that while Tyrolean employment terms were likely to entail a difference in treatment according to the date of recruitment by the employer concerned, such a difference is not, directly or indirectly, based on age or on an event linked to age.

“It is the experience which may have been acquired by a cabin crew member with another airline in the same group of companies which is not taken into account for grading, irrespective of the age of that cabin crew member at the time of his or her recruitment,” the court held in case C 132/11 Tyrolean Airways.

This criterion was “neither inextricably nor indirectly linked to the age of employees”, the court concluded.

The judges acknowledged that it was “conceivable” that, “in some individual cases”, the consequence that staff who had not acquired equivalent experience with Tyrolean would be promoted at a later age compared with counterparts at Tyrolean.

Age discrimination was banned by the general equal treatment directive 2000/78/EC, alongside a range of other discrimination grounds including sexual orientation, religion or belief and disability.

Employers will not be held liable if they can show that the age discrimination measure or practice is a proportionate means of achieving a legitimate aim.

Cases have focused on compulsory retirement and the need to create job opportunities for younger workers, which the Luxembourg court has ruled could be regarded as a legitimate aim.