Calculating a notice period on the basis of an employee’s age is unlawful

In Kucukdeveci v Swedex GmbH & Co. KG (C-555/07), German law provided that the notice period for terminating an employee’s employment increased with their length of service, however, the period of employment before the employee’s 25th birthday was discounted.

The ECJ held that the law did not comply with the Equal Treatment Directive (2000/78/EC), and therefore, the period of employment before an employee’s 25th birthday should be taken into account when calculating the notice period.

The German Government stated that the law had a legitimate aim. Its aim was to provide employers with more flexibility to manage their staff numbers by reducing the financial cost of dismissing a young worker. It was reasonable to expect younger workers to quickly find other jobs due to their high degree of personal or job mobility.

However, the ECJ replied that the law was not an appropriate measure to achieve the aim because it applied to all employees who were employed before their 25th birthday regardless of their age at the time of their dismissal.