Active ageing, older workers and employment protection

Dynamics and tensions in labour law, non-discrimination law and collective bargaining

Mia Rönnmar, Lund University, Faculty of Law

An ageing population is a major trend in the EU as well as in many developed economies due to declining birth rates and rising life expectancy. This has important implications for economic performance, intergenerational solidarity, social cohesion and the sustainability of pension and healthcare systems. 2012 was the European Year of Active Ageing and Solidarity between Generations, and the EU Active Ageing Policy aims to promote a healthy and active ageing population, increase the labour market participation of older workers (55+) and prolong working life.

An ageing workforce poses challenges for labour law, employment relations and social partners and collective bargaining – and for employment protection. The aim of this paper is to analyse the function, content and future challenges of employment protection, and its interplay with non-discrimination law, from the perspective of older workers and a prolonged working life. The Swedish labour law and employment relations system and EU law are in focus, and the analysis covers statutory, collective bargaining and case law developments.

The Swedish labour law and employment relations system is based largely on self-regulation through autonomous collective bargaining. Wages and employment conditions are mainly set by collective agreements. The understanding and regulation of employment protection change over time and between jurisdictions, and the precise content of the employment protection regulation – including the level of protection it offers – is often debated. This is the case in Sweden at present, where employment protection, and especially redundancy and seniority rules, are at the centre of the political debate. A tension is growing between collective bargaining and ‘legislative intervention’.

The vulnerability of older workers – due, for example, to ageism and possibly out-of-date competence and training but also to weakened performance – has influenced the content of employment protection in many EU Member States, and special protection for older workers has been afforded. In Sweden, a concern for older and sick employees has formed a basis for the statutory employment protection regulation from the beginning. As a rule, sickness or old age does not constitute just cause for dismissal. The employer is obliged to conduct a thorough investigation into the possibilities for adaptation and rehabilitation and finding alternative work for the employee. Employment protection, and especially seniority rules, are seen by some as affording necessary protection for older workers, while others view them as barriers for the entry of younger workers into the labour market. Age has traditionally been influential in the organisation of labour markets and labour law regulation. The ban on age discrimination (in both EU law and Swedish law) and employment protection intersect when it comes to, for example, fixed-term employment contracts for older workers, seniority rules in redundancy situations and compulsory retirement.

This paper provides an analysis of a number of key aspects, such as:

  • redundancy dismissals and seniority rules,
  • protection against dismissal on grounds of old age, sickness and disability,
  • compulsory retirement and fixed-term employment for older workers, and
  • the interplay between employment protection and non-discrimination law, including age discrimination, disability discrimination, gender discrimination and multiple discrimination.

Thus, this paper entails a topical analysis of employment protection, non-discrimination law, elder law and collective bargaining at Swedish and EU level, and integrates employment relations perspectives. This research is carried out within the Norma Elder Law Research Environment (!elderlaw).