In What Circumstances Will Age Discrimination be Lawful?
The European Court of Justice (ECJ) has held that an upper age limit of 35 years for applicants to the Basque Police does not amount to age discrimination.
The Facts
Mr Salaberria Sorondo, who was over 35, brought a claim in relation to a recruitment notice issued by the Director General of the Basque Police and Emergency Services Academy (Academy) stipulating that candidates had to be under the age of 35.
Mr Sorondo argued that there was no justification for the upper age limit and that it amounted to age discrimination under the Equal Treatment Framework Directive (the Directive). The Academy argued that the imposition of the upper age limit was designed to preserve the operational capacity of the Basque police force, ensuring that newly-recruited officers are capable of carrying out the most physically intensive tasks for the majority of their careers.
The court noted that the duties of the Basque police force differed from those carried out by local police forces and included duties usually carried out by state security forces. On this basis the Court considered that the imposition of the upper age limit was compatible with the Directive. However, the case was referred to the ECJ for a preliminary ruling on this point.
The ECJ's Decision
The ECJ held that Article 4(1) of the Directive did not preclude the imposition of an upper age limit for applicants to the Academy and that the age limit in this case did not amount to discrimination.
According to Article 4(1), a difference of treatment based on a characteristic related to age (as opposed to age itself) will not constitute discrimination where it is a genuine and determining occupational requirement, provided the objective is legitimate and the requirement is proportionate. The ECJ held that the possession of particular physical capabilities required for the role (which included duties relating to the protection of the public, arresting offenders and preventative patrolling) constituted a characteristic relating to age and was a genuine and determining occupational requirement within the meaning of Article 4(1).
The ECJ went on to find that ensuring the operational capacity and proper functioning of the police service was a legitimate objective and that the age requirement in this case was proportionate.
In reaching its decision, the ECJ relied on a range of specific evidence submitted by the Academy as to the decline in operational performance of officers from the age of 40, the age structure of the Basque police force and the difference in duties as compared with local police officers.
Best Practice
This case is a reminder of how difficult it is for employers to impose an upper age limit on recruitment, and how seldom such a requirement will be held to be lawful. Employers will not be able to rely on assumptions about a particular age group's physical or mental abilities and clear evidence of a very high standard will always be required to justify any age restrictions. In its judgment, the ECJ noted that a finding of proportionality in such cases was conditional upon the referring court being satisfied as to the accuracy of the evidence before it.
It is also worth noting that the 'genuine and determining occupational requirement' test in Article 4(1) of the Directive is a wider exception to the UK equivalent under the Equality Act 2010. Under the Equality Act 2010, the occupational requirement must be that the employee is of a particular age group, as opposed to possessing a characteristic related to age (such as physical fitness).