Can age discrimination be beneficial to employees?

Agnieszka Fedor

By Agnieszka Fedor, advocate, partner Wierciński, Kwieciński, BAEHR

The replacement of older retiring employees with those from younger generations is a natural process that, among other things, allows employers to adjust to changing economic circumstances and new challenges.In some sectors, especially those which are significantly regulated by social agreements and employment guarantees covering employees, the retirement of employees represents one of the very few opportunities to change the employment structure. Many employers believe that retirement is an automatic process and that employees who reach their retirement age should immediately vacate their posts to younger employees, either voluntarily or as a result of termination of their employment contracts. Indeed, for many years, the Polish Supreme Court consistently ruled that an

employer can dismiss an employee solely because the employee has reached the retirement age and acquired the right to a pension. The Supreme Court also stated that reaching the retirement age constitutes a legitimate criterion for selecting employees for dismissal based on economic reasons. This attitude was welcomed by employers. However, the Supreme Court changed its attitude, ruling that reaching the retirement age cannot be the sole reason for termination of employment (e.g. Resolution of the Supreme Court dated January 21, 2009 I).Termination on such basis would be considered as indirect age discrimination. This position was reinforced by a relatively recent decision (dated February 18, 2014) in which the Supreme Court stated that acquiring the right to a pension may not be the cause for termination of employment and constitutes discrimination on the grounds of age. In that case, the claimant was a woman who received a termination notice after 38 years of working for a railway company. The termination took place in the context of group dismissals, and theemployer indicated the employee’s right to disability allowance or pension as one of the selection criteria.The Supreme Court stated that such discrimination by the employer violated Article18(3a)(1) of the Labor Code. From a legal point of view, the current opinion of the Supreme Court is well grounded. Nevertheless, it is not necessarily beneficial

to older employees. Since employers are not allowed to give notices of termination based only on the fact that employees have reached retirement age, employers are now looking for arguments to show that such employees are not performing their duties properly, are slower than other younger employees, and do not understand the demands of modern technology as well as their younger colleagues. As a result, the termination procedure,including its justification, can be more difficult or even humiliating for such employees.

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