Employer Does not Have to Comply with the Senior Staff Scheme

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Sub-district Court Den Bosch, September 19, 2019, ECLI:NL:RBOBR:2019:5295


Sub-district Court Den Bosch, September 19, 2019, ECLI:NL:RBOBR:2019:5295

The employer did not have to comply with a scheme that gave older employees right to additional time off because it made a distinction as to age, whereas there was no objective justification for doing so.

Until 1 July 2011, a company CLA, concluded with two trade unions, applied for a wholesale company in pharmaceutical products.
When no agreement could be reached on extension of this CLA, the employer had agreed on an employment conditions scheme with the Works Council. To this end, an agreement with the Works Council was signed as a result of which the Works Council was given the right of consent with regard to the terms of employment. Then the employer had asked all employees to give their agreement to include this employment conditions scheme in their employment contract. As for to employees who refused to do so, the employer would continue to comply with the CLA, the term of which had expired. In that case, the employment conditions scheme did not apply for them, as a result of which they would also miss out any wage increases.
One part of the CLA that the employer did not apply was the Senior Staff Scheme. Under this scheme, employees aged 55 and over, who had been working full-time for the last five years were entitled to a reduction in working hours to 32 hours per week, with continued payment of 80% over the reduced working time. As from 1 January 2015, the employer had discontinued application of this scheme because, according to the employer, it had become invalid because of prohibited age discrimination. Instead of this Senior Staff Scheme, the employer and the Works Council had agreed upon a program for an age-aware personnel policy whereby a budget was made available for the organization of activities promoting physical, mental and social health. Participation in this program was open to all employees, including those younger than 55 and also to those who had not agreed to the employment conditions scheme.
The trade unions and a number of employees opposed the abolition of the Senior Staff Scheme at the Sub-district Court. They stated that the employer had unilaterally changed the employment conditions and wanted the employer to fully comply with the CLA. They also claimed the salary increases that the employer had granted to employees who had accepted the employment conditions scheme.

The Sub-district Court noted that the Senior Staff Scheme directly distinguishes as to age, since participation is open to employees of 55 and older only. The Equal Treatment Act does not permit direct discrimination for work based on age. The only exception is if there are good reasons to take age-specific measures and if these measures are part of a wider age-aware personnel policy.
The Sub-district Court further noted that it had only been an intention to develop such a policy at the time of entering into the CLA and that, so far, it had not been realized.
Subsequently, the Sub-district Court noted that the Senior Staff Scheme was not needed either to continue working as healthily as possible and to reach the retirement age, since there are other means to reach this objective, without a distinction according to age. This implied that there was no objective justification for age discrimination.
For this reason, the Senior Staff Scheme was invalid. Therefore, the employer was not required to comply with it.
There was no unilateral change in the terms of employment, because the employer complied with the CLA, insofar as it was not invalid.
Employees are not entitled to the wage increase as long as they have not signed the employment conditions scheme.


In order to be able to make a direct distinction as to age, the law requires an objective justification. For such an objective justification, the requirements of legitimacy, subsidiarity and proportionality must be met.
The requirement of legitimacy is met if there is a legitimate purpose for the distinction. In the present case, it could be that employees should reach their retirement age in good health. The subsidiarity requirement is met if making a distinction is necessary in order to reach the objective. There should not be a way without a distinction as to age in order to reach the objective. The Sub-district Court ruled that this requirement was not met in the present case. Finally, the requirement of proportionality is met if making the distinction is not a disproportionate measure in order to reach the objective.
In this case, the Sub-district Court did not have to address this requirement any more.

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