Skip to content

Advocate General Michal Bobek recently delivered his opinion in the Court of Justice of the European Union (CJEU) case of Abercrombie & Fitch v Antonino Bordonaro, which considers whether automatic termination of a zero-hours contract on reaching a certain age was unlawful age discrimination. The Advocate General’s opinion does not bind the CJEU but often gives an indication of how the case will be decided.

Zero-hours contract

Mr Bordonaro was employed by Abercrombie and Fitch in Italy on a zero-hour contract, which was terminated when he turned 25.

Italian legislation provides that those under 25 (and over 45) can always be employed under a zero-hours contract, while those aged 25-45 can only be engaged on such contracts in limited circumstances.

Legitimate aims

Mr Bordanaro claimed that his dismissal, in effect, was discrimination based on his age. Abercrombie relied on the Italian legislation and, as it is possible to justify discrimination on the basis of age, the Italian government claimed that there were legitimate aims underlying the legislation and that the means of achieving those aims (i.e. the legislation itself) was appropriate and necessary.

The Italian Supreme Court asked the CJEU to determine whether the Italian legislation was contrary to the EU principle of non-discrimination on grounds of age. AG Bobek addressed this question for the CJEU and gave guidance on the matter in light of EU law.

Advocate General’s opinion

AG Bobek found that the Italian legislation provided for a difference in treatment between comparable groups directly based solely on one of the prohibited grounds, namely, age. Whether there was ‘less favourable treatment’ as a result of this was left to the national courts to decide. AG Bobek said that this would involve a “comprehensive assessment of the impact of the operation of the rule.”

The main points of issue in his opinion was the question of whether the Italian legislation was justified by a legitimate aim and the means of achieving that aim was necessary and appropriate.

The Italian government had put forward numerous aims it stated underpinned the legislation in question, one of which was promoting and facilitating the employment of young people. Although it was accepted that this may be a legitimate aim, the various aims stated by the Italian government made the overarching aims unclear and AG Bobek noted that this made it difficult to ascertain the fundamental aim of the legislation.

Importantly, he pointed out that when the matter of justification was being considered, there must be probative evidence to back up the stated justification and not simply generalisations: “Mere generalisations concerning the capacity of a specific measure to contribute to employment policy, labour market or vocational training objectives are not enough to show that the aim of that measure is capable of justifying derogation from that principle and do not constitute evidence on the basis of which it could reasonably be considered that the means chosen are suitable for achieving that aim.”

He did not appear to be convinced that dismissing 25 year olds on zero-hour contracts was justified so that younger workers had greater employment opportunities.

Age discrimination

This case makes clear that if there is a policy in place that has the effect of discriminating on the basis of age, having a clear legitimate aim underpinning that policy will make it easier to ascertain if the same is justified and therefore to defend claims of age discrimination. Furthermore, when attempting to justify the legitimate aims, there must be hard evidence to show the effect of the measure in practice, rather than relying on broad generalisations such as ‘to protect younger workers’.

The Italian law is intriguing: at first glance, one might think that the law obviously discriminates on grounds of age because different age groups have different rights.

However, it is designed to make employing those under 25 and over 45 more attractive to employers as employees of that age would have fewer rights and, in particular, no right to a certain amount of work and/or pay.  This could make it easier for such employees to find work.

On the other hand, the lack of rights that often go hand-in-hand with the zero-hours contract would seem to place under 25s at a disadvantage in terms of, for instance, job security, when compared with over 25s.

It is likely for these reasons that AG Bobek said the Italian court would need to look carefully at the impact of the law in practice. It will be interesting to see if the CJEU follows this opinion.

Zero-hour contracts continue to attract comment from press and politicians, and it remains to be seen how the law in relation to such contracts will develop, if at all.

For more information on any of the issues raised in this article, contact Jonothan Scollen in the Leeds Employment team by emailing [email protected] or calling 0113 368 7583.