Discrimination in employment vs. CJEU ruling of 7 December 2023 in case ref. no. C-518/22

On 7 December 2023, the Court of Justice of the European Union ruled that a job offer stating a minimum age and maximum age of the person to be hired does not constitute an act of discrimination. But the question is whether such a difference of treatment of job candidates is justified in every case.

Summary of the dispute

AP Assistenzprofis is a German is a company which offers persons with disabilities assistance and advisory services. In 2018, that company published a job offer on its website stating that a 28-year-old female student was looking for a female personal assistant. The offer contained certain requirements regarding who the future assistant should be: a female between 18 and 30 years old. Following the recruitment process, a candidate in her 50s who was not hired for the position of personal assistant concluded that she had fallen victim to discrimination on grounds of her age. As a result, she sued the German company for compensation for damage resulting from discrimination on grounds of age The would-be employer’s position was clear: the company claimed that the job offer, which included the age limit for the personal assistant, was justified by the nature of the job. In the first place, it took into account the wishes and needs of the beneficiary, who is a person with a disability. This is allowed by German law. Since the dispute was resolved in favour of the company in the second instance, the federal court which subsequently considered the complaint noted that the issue should be assessed in the light of EU Directive 2000/78/EC, which sets up a general framework for equal treatment in employment and occupation The federal court eventually asked the Court to take a position on the case.

Court ruling

At the very outset, the Court noted that the German law includes an explicit requirement to respect the individual wishes of persons with disabilities when providing personal assistance services to them. Beneficiaries should be thus given a wide range of opportunities to choose a candidate with the characteristics they have individually identified, given the specific type of service provided.

The CJEU made it clear in its ruling that preference for a certain age range expressed by the disabled person in receipt of personal assistance services promotes respect for that person’s right to self-determination. It thus appears reasonable to expect that the person will be within a specific age range that is convenient for the beneficiary, i.e. one that will make it possible for the service provider and the service recipient to find a common language and establish a bond. As can be seen, the psychological aspect is an important consideration here, as a person with a disability to whom personal assistance will be provided requires understanding and patience from the candidate and full freedom of communication, a requirement best met by people of a similar age to the person concerned. The judgment is in line with the opinion given by J. Richard de la Tour, CJEU Advocate General. In his view, the employment of a personal assistant may be subject to an age requirement provided that this is necessary to protect the rights and freedoms of others. The Advocate General specifies that his opinion concerns the German case (where the national legislation stipulates that account is to be taken of the individual wishes of persons receiving personal assistance services in order to promote their autonomy and social integration). He also notes such an interpretation is permissible in the light of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.

What would a similar case look like in Poland?

Unlike German legislation, Polish legislation does not stipulate that the individual wishes of persons with disabilities must be met when providing services to them. As a result, a ruling in a similar case under Polish law could be quite different. After all, one should bear in mind that, as a general rule, a job candidate cannot be rejected solely on grounds of their age or gender. However, pursuant to Article 18(3b) of the Labour Code, differences in the situation of employees commensurate with the achievement of a legitimate objective, e.g. consisting in not employing an employee for one or more of the reasons set out in Article 18(3a) § 1 of the Labour Code, are permitted provided that the reason(s) listed in this provision are the real and decisive professional requirement for the employee due to the type of work or the conditions of its performance. In such a situation, an allegation concerning a prima facie case of discrimination would be found groundless if the employer could show that it was motivated by objective reasons in the final selection of job candidates. Nevertheless, it is important to consider each case on its own merits and employers should seek to satisfy the principle of equal treatment in employment to the greatest extent possible.

Consequences

According to statistics from the Polish Economic Institute, unequal treatment on grounds of age, as perceived by 26% of surveyed Poles happens often or very often. We can note, then, that this type of discrimination is faced by a considerable number of job candidates.

The ruling from the CJEU may in a way serve as a hint to Polish employers that the use of the age criterion will be justified in certain exceptional and justified circumstances and will not constitute discrimination in employment. The commentators believe that the Court’s ruling should alert employers to the fact that, as a general rule, a difference of treatment on grounds of age is unacceptable, and that any exceptions should be made with far-reaching caution and in a really well-considered manner. One should bear in mind that what was crucial in the case assessed by the CJEU was the special provision introduced by German law, and there is no analogous provision in the Polish legal order at the moment.

Authors:
Katarzyna Hiller, Attorney at Law
Zuzanna Włoczko, Legal assistant