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Automatic termination of zero hours contract at 25 was objectively justified

Posted on 13th September 2017
Case law

If a provision, criterion or practice is objectively justified, it may not be considered discrimination.

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Abercrombie & Fitch v Bordanaro [ECJ] 2017

The Facts

Mr B worked for Abercrombie & Fitch in one of its warehouses in Italy. 

In Italy, legislation provides for the automatic termination of the Italian equivalent of zero hours contracts when an employee reaches 25.  Mr B reached 25 and was not included in the shift roster.  When he asked why he was told it was because he was now 25 and his contract had been terminated.

Mr B claimed this was indirect age discrimination. Strangely the Italian court was unsure whether it was or wasn't but referred the matter to the European Court.

The Decision

The European Court very clearly concluded that it was indirect age discrimination (and was surprised and was surprised there could be any doubt about it).  It went onto conclude, however, that the automatic termination at age 25 was objectively justified because:

  • The provision was in place to make the employment market in Italy more flexible and increase employment levels.
  • It facilitated the entry of young people into the labour market and enabled them to obtain professional experience and open up other employment opportunities.
  • It gave initial experience but, unless it could be terminated, it would prevent those younger from having the same benefit.

In Practice

Although not directly relevant in the UK, which has no similar legislative provision, it is an interesting case and decision considering when discrimination might be objectively justified.

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