The European Equal Treatment Directive applies to access to employment, recruitment, pay and promotion. In Tyrolean Airways Tiroler Luftfahrt GmbH v Betriebsrat Bord, the Court of Justice of the European Union (CJEU) said that a provision in a collective agreement which failed to take into account service with another company within the same group when determining the pay grade was not indirect age discrimination within the meaning of the directive.

Basic facts

Tyrolean Airways and Lauda Air were both wholly owned subsidiaries of Austrian Airlines.

The terms and conditions of Tyrolean Airways’ flight and cabin crews were subject to a separate collective agreement. This stated that staff could only advance from category A to B (and therefore a higher rate of pay) exactly three years after they were recruited as a member of cabin crew. The issue was whether the three years ran from recruitment to Tyrolean Airways, or to any other airline in the group.

In July 2010, the Betriebsrat (works council) sought a declaration that the collective agreement applied to cabin crew with three years’ service with any of the airlines.

Decisions of lower courts

The first instance court agreed and said that the clause had to be interpreted as meaning that “advancement from category A to category B is to occur on the completion of three years service within the group”, not just Tyrolean Airways.

Tyrolean Airways appealed. The appeal court took the view that the contracts of Tyrolean cabin crew indicated that recruitment was restricted to that airline, and that this amounted to age discrimination because the skills and knowledge of older workers acquired with another airline was not being taken into account.

The appeal court asked the CJEU to decide whether the collective agreement was indirectly discriminatory against older workers contrary to the directive.

Decision of CJEU

The CJEU said it was not. It reasoned that although the difference in treatment was due to “the date of recruitment by the employer concerned, such a difference is not, directly or indirectly, based on age or on an event linked to age”.

Experience which a cabin crew member might have accumulated with another airline in the same group of companies was not being taken into account irrespective of their age when they were recruited.

It was not therefore based on a criterion which was indirectly linked to the age of employees. That was the case even if a consequence of the collective agreement meant that some cabin crew members may advance to category B at a later age than others who had the same level of service with Tyrolean Airways.

The provision did not therefore constitute indirect discrimination within the meaning of the Equal Treatment Directive.

Comment

This case does not rule out potential indirect age discrimination claims based on length of service and is limited to its facts. Unfortunately the judgment is scant on the details on which the basis of a claim for age discrimination was run.