Can a State provide that under-25s can be employed on zero hour contracts, whilst restricting such contracts for employees aged 25+?
Perhaps, advised Advocate General Bobek in his Opinion in Abercrombie & Fitch v Bordonaro.
Mr Bordonaro worked for Abercrombie & Fitch in Italy, employed under a zero hour contract. On turning 25, he was no longer included in the work schedule. The reason was his age. Italian legislation provides those under 25 (and over 45) can always be employed under zero hour contracts, whilst those 25-45 can only do so in limited circumstances.
Mr Bordonaro claimed this was discrimination. A reference was made to the CJEU.
Whilst emphasising it is for the national court to determine the existence of discrimination and objective justification, the Advocate General gave the following guidance:
1. ‘Less favourable treatment’ is determined by a comprehensive, global assessment of the rule’s impact.
2. Promoting employment and facilitating recruitment of younger workers may be legitimate aims.
3. The more legitimate aims raised, the harder necessity becomes to determine.
4. Justification requires probative evidence, not mere generalisations.
5. The Advocate General was not convinced dismissal at 25 was justified so younger workers had greater employment opportunities.
The Advocate General's opinion is not binding, but is usually followed by the CJEU.
Thanks to Jason Braier of Field Court Chambers for preparing this case summary.