Abercrombie & Fitch Italia Srl v Antonino Bordonaro [2017]

Key Issues: Social Policy – Equal Treatment – Age Discrimination 

Case: Abercrombie & Fitch Italia Srl v Antonino Bordonaro

Reference: Case C-143/16, CJEU (First Chamber), 19 July 2017

Legislation: Directive 2000/78/EC

Mr Bordonaro was employed by Abercrombie from 14 December 2010 on a ‘fixed-term employment contract’, which was converted on 1 January 2012 into a contract for an indefinite period, in order to perform night warehouseman tasks. The contract provided that he must, on an on-call basis, upon each request to that effect from the undertaking, ‘provide assistance to clients and operate a till’. Mr Bordonaro worked at night four to five times per week for the first months of his employment then, from 2011, between three and four times per week. The working shifts were allocated among all the staff in accordance with a two-monthly work schedule. After realising that his name was no longer included in the work schedule following that which ended on 16 July 2012 and not having received any fresh requests to carry out work, Mr Bordonaro contacted the Human Resources department of Abercrombie. By email of 30 July 2012, the head of that department informed him that his employment contract with Abercrombie had ended on 26 July 2012, the day of his 25th birthday, since, from that date, ‘the age requirement [was] no longer satisfied’.

Mr Bordonaro brought an action before the Tribunale di Milano (District Court, Milan, Italy) seeking a ruling that his on-call, fixed term contract and his dismissal were unlawful as a result of age discrimination. Since the Tribunale di Milano (District Court, Milan) declared the action inadmissible, Mr Bordonaro appealed to the Corte d’appello di Milano (Court of Appeal, Milan, Italy) which, by judgment of 3 July 2014, held that there was an employment relationship of an unlimited duration and ordered Abercrombie to reinstate him in his post and to compensate him for the loss suffered.

Abercrombie appealed on a point of law against that judgment to the Corte suprema di cassazione (Supreme Court of Cassation, Italy) which decided to stay the proceedings and to refer a question to the Court of Justice EU (CJEU) for a preliminary ruling.

Consideration by CJEU

The CJEU noted that Mr Bordonaro was employed on 14 December 2010 on the basis of an on-call, fixed-term employment contract in order to perform, at each request to that effect from Abercrombie, the work of a night warehouseman. As is clear from the file before the Court, he worked at night four to five times per week for the first months of his employment then, as from 2011, between three and four times per week. Furthermore, at the hearing before the Court, Mr Bordonaro stated that he was in the same situation as 400 other Abercrombie employees, whose contract was governed by collective agreements. It is thus clear that, having regard to the conditions under which it was performed, the accuracy of which it is for the referring court to ascertain, Mr Bordonaro’s work cannot be regarded as being purely marginal and ancillary. It is therefore probable that the employment contract held by Mr Bordonaro is such as to allow him to assume the status of ‘worker’ within the meaning of Article 45 TFEU. It is for the national court, which is the only court with detailed and direct knowledge of the dispute in the main proceedings, to assess whether that is the case.

According to the CJEU, it must be held that the provision of national law at issue in the main proceedings creates a difference of treatment on grounds of age, for the purposes of Article 2(2) (a) of Directive 2000/78. The CJEU than examined whether that difference in treatment can be justified. The first subparagraph of Article 6(1) of Directive 2000/78 provides that Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

Abercrombie submitted that, in a context of a persistent economic crisis and weak growth, the situation of a worker aged under 25 years who, thanks to a flexible and temporary employment contract, can access the labour market is preferable to the situation of someone who does not have such a possibility and who, as a result, is unemployed. Moreover, the Italian Government explained at the hearing that those forms of flexible work are necessary to facilitate workers’ mobility, increase the adaptability of employees to the labour market and give access to that market to persons in danger of social exclusion, while eliminating forms of illegal work.

The CJEU held that

Article 21 of the Charter of Fundamental Rights of the European Union and Article 2(1), Article 2(2)(a) and Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 must be interpreted as not precluding a provision, such as that at issue in the main proceedings, which authorises an employer to conclude an on-call contract with a worker of under 25 years of age, whatever the nature of the services to be provided, and to dismiss that worker as soon as he reaches the age of 25 years, since that provision pursues a legitimate aim of employment and labour market policy and the means laid down for the attainment of that objective are appropriate and necessary.

Why is this decision important?

It is clear that the prevailing economic circumstances were fundamental to the CJEU deciding that the employer was justified in terminating a contract when the worker reaches 25 years of age. Employers should be wary of a universal application of such employment policies when the economy improves as the justification may no longer be available.