Age Discrimination in France

Introduction

Age discrimination is prohibited in the employment field.

The prohibition against age discrimination applies equally to all kinds of employees whether on indefinite, fixed term or part time employment contracts as well as to trainees or job applicants.

Forms of discrimination

The law prohibits:

• direct discrimination
• indirect discrimination, and
• victimisation.

It is also unlawful to issue instructions to discriminate on the grounds of age.

When is discrimination prohibited?

Discrimination is prohibited throughout the employment relationship including in relation to:

• recruitment (including the advertisement of vacancies)
• training
• disciplinary sanctions, termination of employment and any other detrimental treatment
• remuneration, including profit sharing and allocation of shares, and
• reclassification, classification, promotion, and transfers or the renewal of contracts.

Can discrimination be justified?

It is possible to treat employees differently on the ground of their age if the difference in treatment is objectively and reasonably justified by a legitimate purpose and when the means used to attain the purpose are necessary and appropriate.

Who must not discriminate?

The non-discrimination principle applies to all employers and any employee that is entitled to take any of the measures mentioned above in relation to other employees.

Retirement ages and procedures

Retirement at the employer’s initiative

Except in limited circumstances, an employer can only compel an employee to retire when the employee has reached the age of 70.

When an employee reaches the age at which he/she is automatically entitled to a full state pension, the employer cannot compel him/her to retire and needs to obtain the employee’s agreement. Only if the employee accepts, the contract can terminate by retirement.

Any clause (eg of a CBA, a company agreement or an employment contract), providing for the automatic termination of an employment contract or for the retirement of an employee upon reaching a certain age is discriminatory as it is only based on the age of the employee and is therefore null and void.

Retirement at the employee's initiative

An employee can decide to retire and benefit from a full or partial state pension (depending on their length of contributions).

Protection against dismissal

Although positive discrimination is not allowed, in the case of dismissals for economic reasons, the law provides that “age” is one of the objective criteria which should be taken into consideration when selecting the employee(s) to be dismissed.

Enforcement and penalties

If a tribunal finds that an employer (or another employee) has been guilty of discrimination, any measure taken by the employer or any clause in an employment contract or a company agreement in breach of the principle of non-discrimination is null and void. In addition, the employee can ask for its reinstatement within the company or bring a claim for damages.

There are specific rules in relation to the burden of proof of discrimination. Before a civil tribunal, an employee who believes that he/she has been the victim of discrimination must put before the judge facts from which the existence of discrimination can be presumed. If these facts are sufficient, the employer must then prove that their decision/act was justified by objective criteria totally unconnected with any kind of discrimination.

Breach of the principle of non-discrimination is also punishable by criminal sanctions namely a fine (of up to €45,000 for the individual responsible (for example the CEO in France, the manager of the employee victim of discrimination, etc) and €225,000 for the company) and imprisonment of up to three years.

Recommended steps

The employer must be able, for example when recruiting or terminating employment, to ensure that he/she can demonstrate (by written evidence if possible) that his/her decision has been based on objective reasons (thus excluding any discrimination).

Further information on Age discrimination in France is available from our International Employment Issues microsite here.