An Advocate General of the European Court of Justice has given an important opinion this week. Although it concerns Italian employment law, it could also have implications for the National Living Wage in the UK.
In Italy, zero hours contracts can only be used for employees under 25. As a consequence, employees on zero hours contracts were routinely dismissed on reaching the age of 25. The questions considered by the Advocate General were whether it was age discrimination to treat younger employees differently from their older colleagues, and whether it was age discrimination to dismiss employees on reaching a certain age.
There are no age restrictions for zero hours contracts in UK law but they do exist for the National Living Wage, which only has to be paid to employees who are 25 or over. It is likely that the same principles will apply to both the Italian and the UK examples.
The Advocate General held that the Italian law allowing zero hours contracts only for younger employees could potentially be justified as a way to promote employment among young people, so long as the Italian government could produce the evidence that it is necessary. Similarly, if it produces the relevant evidence, the UK government is likely to be able to justify age restrictions for the National Living Wage.
However, the Advocate General doubted whether dismissal would be proportionate in the circumstances, because the detrimental effect of the dismissal would likely outweigh the benefit of increased opportunities for employment.
The case will go on to be considered by the full European Court of Justice but decisions of the Advocate General are usually followed. In the meantime, employers have no reason to change their rates of pay but are advised to be cautious about dismissing employees who reach an age which requires their pay to be increased.