If an employer decides that employees over 60 will no longer work in shifts, does this amount to age discrimination? Read the answer to that question here:
What were the facts?
Employer, Mitsubishi Turbocharger and Engine Europe B.V. (MTEE) operates in the automotive industry. A number of production workers work in three shifts, which results in a shift allowance of 21% on top of the fixed gross monthly wage. The employment contracts of these employees stipulate that MTEE is allowed to change the schedules. The collective employment agreement also includes a number of provisions on shift work.
In September 2022, MTEE submitted a request for approval to the Works Council, including on changing the shifts for older employees. The Works Council and the trade union agreed to this request. Subsequently, MTEE took adopted measures in the field of age-conscious personnel policy. There will also be a cost-savings programme, in which the number of production lines with shift work will be reduced. This is in order to save on shift allowances. Eventually, MTEE decided that a number of employees (all of which over 60) would have to work day shifts as of January 1, 2023. As soon as the phasing-out arrangement under the collective labour agreement expires, their shift allowance will also expire.
Three employees did not agree and started preliminary relief proceedings with the subdistrict court. They demanded that they be allowed to work shifts again and claimed retroactive payment of the lost shift allowance. However, the subdistrict judge did not agree. Two of the three employees then appealed.
What does the court of appeals decide?
According to the court of appeals, being allowed to work shifts is not an agreed-upon condition of employment under the employment contract. Shift allowance is only due if shift work is performed, and MTEE may adjust the schedule after consultation with the employees. Nor is shift work an acquired right or condition of employment.
And even if this were different, the employment contract contains a broadly worded unilateral changes clause. According to the court of appeal, MTEE has a compelling interest in amending employment contracts, because of the need to reduce costs. Furthermore, the decision to no longer allow those employees over 60 to work three shifts does not constitute age discrimination. The reduction of shifts for older people and thus reducing the burden on older workers is a legitimate goal and is also stated in the applicable collective labour agreement. The measure fits into the age-conscious personnel policy. The fact that the measure is also motivated by financial motives does not make it impermissible. The employees' claims are therefore rejected.
You can read this ruling here.
Final Remarks
It is important to be careful as soon as things change to the detriment of employees in terms of working hours and/or salary: does it concern the change of a condition of employment or not? What rules apply then? The text of the employment contract, the collective labour agreement and the law all play an important role, and no two cases are the same. So, as an employer, make sure you receive adequate information well in advance. The employment law team of SPEE advocaten & mediation is ready to help you.