Is age discrimination unlawful?
Yes. On 01 May 2004, an Act outlawing age discrimination came into force. The law prohibits:
- direct discrimination
- indirect discrimination
- harassment, and
It is also unlawful to issue instructions to discriminate on the ground of age.
When is discrimination prohibited?
Discrimination is prohibited in relation to, for example: conditions regarding offering employment, self-employment or an occupation, including selection criteria and recruitment conditions (and including the advertisement of vacancies), employment and working conditions, termination of employment, access to all types and to all levels of vocational guidance and vocational training and membership of and involvement in employers’ or employees’ associations and professional associations, including the benefits provided for such organisations.
Can discrimination be justified?
Both direct and indirect discrimination can be objectively justified if the reason for discriminationon the ground of age is legitimate, suitable and proportionate. Harassment and victimisation cannot be justified.
Who must not discriminate?
The law forbids all work-related discrimination based on age and therefore applies not only to all employers, but also to for instance temporary employment agencies, head-hunters and other intermediaries, independent professionals.
Who is protected?
The law applies to all workers, whether paid or unpaid and including the self-employed. The law applies irrespective of the employee’s professional level.
Retirement ages and procedures
The employment agreement of the employee who has reached the state retirement age can in principle be terminated upon reaching the state retirement age or after the employee has reached the state retirement age. If the employment of an employee who has reached the state retirement age is terminated, the employee will not be entitled to any statutory transition payment (ie a severance payment to which, in principle, all employees are entitled to provided that they are in service for two years or more). Case law shows that the exclusion of the statutory transition payment is discriminatory, but this discrimination is justified by a legitimate aim.
Protection against dismissal
Employees must not be dismissed: in breach of the principle of equal treatment and as a reaction to having brought a complaint or legal proceedings to enforce compliance with the principle of equal treatment (or helping another person to bring such a complaint or proceedings). Individuals must start proceedings within two months after the applicable termination date.
Any discriminatory terms or conditions in an agreement are null and void.
Enforcement and penalties
Individuals who believe that he/she has been subject to discrimination can apply to the Committee for Equal Treatment. In addition, an employer can apply to the Committee as to whether a particular measure is discriminatory. Although not legally binding, the Committee’s decisions are usually complied with.
Legal actions can be brought (generally regarding damages) for the Civil Court either after proceedings with the Committee for Equal Treatment or in lieu of such proceedings. However, these proceedings are not very common.
Several CLA’s contain provisions relating to grievances which enable employees to complain about discrimination, bullying (also known as mobbing) and harassment (including sexual harassment).
Compensation for age discrimination is uncapped.
If a person believes that he/she has been subjected to discrimination and establishes facts from which it may be presumed that there has been direct or indirect discrimination, the respondent must prove that there has been no breach of the principle of equal treatment.
Further information on Age discrimination in the Netherlands is available from our International Employment Issues microsite here.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.