The Danish Anti-Discrimination Act prohibits age discrimination, either direct or indirect, when employees are dismissed. Statistical information can form the basis for evidence in an age discrimination claim, but what should be included in these statistics? And when would an age-related distortion in the individuals dismissed be so significant that a presumption of age discrimination is created? That was what the Equal Treatment Board examined, among other things, in this case.

In the case, four workers had been laid off as part of the restructuring of a department of a company. The workers were 61, 57, 56 and in their late 40s. The youngest of the workers was offered re-employment. Two of the workers subsequently complained to the Equal Treatment Board, claiming that they had been discriminated against on the grounds of age.

During the proceedings, the company claimed that the redundancies had taken place as part of a general restructuring of the department where the employees in question were employed. The company also argued that it was necessary to look at the total redundancy pattern across the organisation, not just at the age distribution in a single department. The company presented data regarding the age of all individuals who had been dismissed in the period from 1 January 2019 to 27 August 2020, the point at which the case was pending before the Equal Treatment Board.

In relation to the data set, the Equal Treatment Board came to the conclusion that it was only relevant to look at the age distribution at the time of dismissal and only in the department where the employees were employed.

At the time of the dismissal, 20 employees were employed in the department. The four workers who were laid off made up half of the 60-69-year-olds, two-thirds of the 50-59-year-olds and half of the 40-49-year-olds. None of the 13 employees under the age of 40 were laid off.

On this basis, the Equal Treatment Board found that there was a significant over-representation of older employees among the dismissed employees, and that a presumption of age discrimination was therefore created. At the same time, the Board found that the company, which had not explained during the case why it was precisely these four employees who were to be dismissed, had not discharged its burden of proof to show that age was not included in the assessment of who should be dismissed. The two workers were therefore awarded a compensation equal to nine months’ pay.

It is surprising that the Equal Treatment Board on the basis of statistical information alone based on a relatively small group of employees came to the conclusion that a presumption of age discrimination had been created.

In any event, the decision confirms that in a restructuring or cost saving redundancy round, employers should strive to apply as clear criteria as possible for the selection of the employees to be laid off.