Worried that older workers are being squeezed out of the labour market
- Many people experience discrimination because of age, but it can be difficult to prove, says NITO's lawyer.
NITO's lawyers constantly see that older employees are discriminated against in working life. Discrimination can occur both before employment, during the employment relationship and in connection with the termination of the employment relationship, says NITO lawyer Kenneth Strømme Gundersen (pictured).
Has your employer treated you worse than others in a similar situation because of your age? In that case, it is age discrimination. It sounds simple, but in the formulation "due to" there is a requirement for a causal relationship that can be difficult to establish, explains Strømme Gundersen.
NITO lawyer Kenneth Strømme Gundersen
Discrimination in connection with termination of employment
"At NITO, we come across issues of age, for example in downsizing cases. Seniority is almost always one of the criteria for selecting who is to be dismissed in such cases," says Strømme Gundersen.
He explains that it is especially when the parties are bound by a collective agreement that long seniority provides strengthened protection against dismissal. In such cases, a factual reason is required to deviate from the seniority in the collective agreement.
- Nevertheless, it is not uncommon for employers to have a desire to take out older employees in connection with restructuring. A common way employers do this, even though seniority is a criterion, is to emphasize competence, and preferably skills that the employee does not have.
The reason for the downsizing is, for example, that extensive digitalisation of operations will be carried out in order to keep up with societal developments. Presumably, employees are a little older at new technology than younger employees.
Read more: Notice of a discussion meeting: What you as an employee should know
The employer must ensure skills development
The NITO lawyers also see cases where employees are squeezed out in different ways. They think it is a shame that several older NITO members have a bad exit from working life.
- It is often the last thing you remember best. It's about being able to leave working life with your head held high, look back and be satisfied," says Strømme Gundersen.
- For example, I assisted a member who had been employed for almost 30 years in the same company. When the pandemic came, he was the only person called in for a discussion meeting with a view to dismissal. The reason was, among other things, a lack of competence.
- This NITO member could not remember ever having attended a course under the auspices of his employer, and was probably not 100 percent professionally updated. But here, of course, the employer should have ensured skills development. Instead, it was made easy and the member was terminated.
- We contested the dismissal. The employer probably realized that they had a bad case, so they withdrew the dismissal.
Older people are less attractive in the labour market
Practice from the Anti-Discrimination Tribunal shows that very many of the cases where it is concluded that the anti-discrimination protection is violated are about employment. The reason is most often that qualified candidates are not called in for an interview.
- Typically, these cases concern people in their early 60s. Here, even the Labour Inspection Authority has been convicted," says Strømme Gundersen.
Information in the job advertisement itself can also be discriminatory. Typically is when the employer sets a limit on age in the advertisement text and searches for employees within a certain age range.
Discriminatory senior measures in the workplace
- Discrimination that occurs in the employment relationship is typically linked to various senior measures in the company, says the NITO lawyer.
Some examples from cases where the Anti-Discrimination Tribunal has concluded a violation:
- Termination of the home office arrangement at the age of 67
- Opportunity for employees between the ages of 62 and 64 to take more time off and/or receive higher wages, but not for employees aged 65 or more
- Opportunity for employees between the ages of 62 and 67 to apply for pensionable wage subsidy, but not for employees over the age of 67
- Lapse of the right to reduced working hours with pay at the age of 67
This is what the law says:
The starting point according to the Working Environment Act is that you can stay in the position until the age of 72. However, for reasons of health and safety, there may be a lower age limit internally in a company. An enterprise may also operate with an internal age limit of less than 72 years (but not less than 70 years) if:
- This is practiced consistently
- It is known among the employees that there is such an internal age limit
- The employees are guaranteed a satisfactory occupational pension upon retirement
- The scheme has a factual purpose
- is proportionate