Facts

French law requires a payment to be made to fixed term contract employees at the end of their contract. The payment is equal to 10% of the total gross remuneration that the employee received during the length of the contract. There is no eligibility for the payment where the employee is a “young person” and the contract takes place in a period during the school holidays or university vacations. The legislation does not define “young person”.

O was a student. He worked for Bio Philippe Auguste SARL (“BPA”) under a fixed term contract from 21 December 2010 to 24 December 2010 (four days) during his university vacation. At the end of the contract, O did not receive a 10% payment, with BPA relying on the “young person” exemption.

O brought a claim to recover the €23.21 he believed he was due. He claimed that the failure to receive this payment was age discrimination.

The French Labour court referred O’s case to the ECJ.

Decision

The ECJ began by determining whether it was in a position to deal with the case. O had admitted that he was related to managers of BPA and that the dispute had been provoked for the sole reasons of challenging the provisions at issue. The ECJ recognised that it was highly likely that the dispute was fictitious. However, the ECJ decided to rule on the issue regardless.

In a short (and perhaps, surprising) judgment, the ECJ held that the position of those to whom the French law applies was not comparable of those to whom the French law did not apply. A student employed on a fixed term contract during university vacation is not subject to the same uncertainty in the labour market that affects someone who is not a student. Because the position of the two groups was different and not comparable, there could be no discrimination on grounds of age.

The ECJ did not consider how the position would be different in the case of older students, who would not be subject to the same uncertainty in the labour market but who would be entitled to a payment. Nor did it consider the case of young people working during the vacations, but who do not attend university.

The judgment is available here.

O v Bio Philippe August SARL (Judgment) [2015] EUECJ C-432/14 (01 October 2015)