Facts

Italy has a special form of on-call contract, “il contratto di lavoro intermittente”. This is a flexible employment contract akin to a zero hours contract in the UK. It is available to:

• employees meeting certain objective conditions relating to the intermittent nature of the services and requirements specified in collective agreements; and
• all workers aged under 25 or over 45 (later amended to 55)

Mr Bordonaro was aged under 25 and was employed by Abercrombie & Fitch on such a contract. Mr Bordonaro worked an average of 3-5 times a week. From 26 July 2012 he was no longer included in the work schedule.

Mr Bordonaro was informed on 30 July that his employment had been terminated on 26 July as he had reached 25 years of age and so no longer met the requirements for the on-call contract.

Legal background

Mr Bordonaro brought a claim in the Milan District Court claiming that his contract and dismissal were unlawful and requesting to be reinstated. The Milan District Court ruled against Mr Bordonaro, but this was overturned on appeal by the Milan Court of Appeal.

The Court of Appeal held that both the on-call contract which had been entered into on the basis of his age, and the dismissal based on Mr Bordonaro turning 25 were discriminatory and ordered Abercrombie & Fitch to reinstate Mr Bordonaro and pay him damages.

Abercrombie & Fitch appealed the decision to the highest court in Italy, the Supreme Court of Cassation. The Supreme Court referred the case to the ECJ, seeking an answer to the following question:

Is the Italian law relating to on-call contracts which contains special provisions for access and dismissal for under 25s contrary to the principle of non-discrimination on the grounds of age enshrined in;

• Framework Directive 2000/78/EC (the “Directive”); and
• Article 21(1) of the Charter of Fundamental Rights of the European Union (the “Charter”)

Decision

The ECJ stated that although the Charter is applicable, the Directive had been transposed into national law and therefore the obligation not to discriminate was a national law obligation, it would not consider whether Article 21 would be directly applicable. The primary focus of the ECJ’s decision was in relation to the Directive.

Less favourable treatment

The ECJ declined to decide whether the contracts led to less favourable treatment. The ECJ identified the arguments of the parties:

• Mr Bordonaro’s argument was that the contracts resulted in under 25s receiving less favourable treatment as they lacked certainty and resulted in dismissal solely on the basis of age,
• Abercrombie & Fitch and the Italian Government suggested under 25s were in fact treated more favourably by granting them a privileged contractual status attractive to employers.

The ECJ held that the assessment of whether or not the contracts resulted in less favourable treatment required, “knowledge of the factual impact and … the legislative environment”. For this reason, the ECJ held that it was a decision for the national courts.

Justification

Despite declining to rule on less favourable treatment, the ECJ went on to consider whether the national law could be justified.

The Italian government had put forward a number of legitimate aims for the measure including;

• Promoting flexibility in the job market
• Fostering the entry of young people into the labour market
• Providing the first opportunity for young people to be employed to allow experience in the job market

The ECJ commented that each of the aims put forward were potentially legitimate under the Directive but stated that it was for the national court to decide the ‘precise objective’ behind the national law.

In relation to proportionality, the ECJ held that a decision on the appropriateness and necessity of the national law required “detailed knowledge of the overall legislative landscape” and as such was also a decision for the national court.

Despite failing to rule on any of the key issues, the ECJ concluded that the Directive does not preclude national legislation from providing that specific contracts are applicable only to workers under 25, provided that such legislation:

• pursues a legitimate aim linked to the employment and labour market; and
• achieves that aim by means which are appropriate and necessary.

The judgment is available here.