The National Assembly approves a redundancy plan excluding those over 55

The National Court concludes that, in the context of an agreed collective redundancy, it is not discriminatory to exclude workers aged 55 or over from the scope of voluntary redundancy or to establish higher compensation for certain specially protected groups.

Firstly, the Chamber addresses the allegation of age discrimination for preventing those over 55 from being included in the collective redundancy and, in line with the more demanding standard of control when age is used as a criterion for differentiation, it recalls that differences in treatment may be compatible with the principle of equality when they respond to a legitimate aim and pass a test of adequacy and proportionality in line with Directive 2000/78.

On that basis, the National Court accepts the justification offered in the negotiations, since the exclusion was intended to protect a group with lower employability and a higher risk of long-term unemployment if affected, even voluntarily, and therefore considers that this motivation is legitimate and rules out prohibited discriminatory treatment.

Secondly, with regard to the higher compensation provided for vulnerable or specially protected groups (including situations related to childbirth and childcare, single parenthood, reported disability, gender-based violence, legal guardianship or pregnancy), the ruling rules out both indirect discrimination and fraud or abuse. Thus, it reasons that all discrimination requires pejorative treatment, whereas here the protected group is in a better economic position if it decides to voluntarily adhere, adding that if the intention was to argue "covert" indirect discrimination, it was essential to provide objective evidence, for example through statistical data, showing a disproportionate effect, which was not proven.

Furthermore, it reinforces this conclusion by pointing out that the agreed difference (in this case, 33 versus 35 days) is not particularly significant and, on its own, does not reveal an elusive purpose of the protective legislation.

Article written by the Employment Law Department of ECIJA Madrid.