Justified and Ancient

The case of Ole Andersen v Region Syddanmark. ECJ, 12.10.10 (C-499/08) was reported shortly before Christmas. This case is of interest as it is an ECJ decision that applies the principles of justification under EU law.

Under Danish Law an employee qualifies for a one off severance payment if they have 12 years+ continuous service with one employer. The payment is to help support the older worker who is looking for work. The rules excluded an employee who had been a member of the employer’s pension scheme since at least the age of 50 if, upon dismissal, he or she became entitled to receive a pension under that scheme.

The exclusion was clearly to prevent a ‘windfall’ in the form of a severance payment when the payment was not needed as the employee was going to be claiming a pension rather than looking for work! What the rules did not allow for was someone who although entitled to claim a pension wanted to continue to work.

ECJ found that the aim was legitimate but went beyond what was ‘appropriate and necessary’ as there was no need to have a blanket rule covering all persons age 50 + who would become entitled to their pension. The rule could have been restricted to those who actually claimed their pension rather than those who went back into the labour market seeking to work longer rather than claim their pension.

I like this decision as it is an clear case to start from when trying to work out how whether or not what the employer has done is justified.

Peter D