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Europe's top court says age bars for job applicants can be legal
OUT-LAW News, 21/01/2010
Europe's top court has said that some employers can stop people as young as 30 from applying for some jobs because they are too old. UK Employment Tribunals will have to take account of the ruling in age discrimination cases, an expert said.
The Court of Justice of the European Union said that Germany was allowed to keep in place a law which said that people over 30 could not apply to its fire service. Germany had argued that its recruits needed to be younger than that age so that they could do 15 or 20 years of active service before being moved off frontline duties.
Employment law expert Catherine Hey of Pinsent Masons, the law firm behind OUT-LAW.COM, said that the ruling will have an effect in the UK.
"These cases are relatively rare, but it will be binding and Employment Tribunals will have to apply it as far as possible within UK law," she said.
The ruling conflicts with a Tribunal decision last year which said that it was unlawful age discrimination to bar applicants for air traffic control positions who were over 36.
German authorities said that it was essential to ensure that recruits were under 30 to ensure that, once older workers were moved away from frontline duties, there was a plentiful supply of younger workers available.
The European Union's Equal Treatment Directive allows employers to treat workers of different ages differently when there is a 'genuine occupational requirement'.
"Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate," says Article 4(1) of the Directive.
The Court said that the German fire service's actions fell within this exemption.
Hey said that this was a rare example of a successful 'genuine occupational requirement' defence.
"Using the genuine occupational requirement is a novel argument that hasn't been run before in reported cases," she said.
Hey said, though, that the Court of Justice had made a leap of faith in its ruling.
"It is a kind of direct discrimination by the back door. What the Court is doing is saying that if you have a genuine occupational requirement you can have an age bar," she said. "It has jumped to that idea with no particular analysis."
Hey said that the German case was very different to last year's UK Employment Tribunal case.
"In the German case there was very clear evidence that the performance of firefighters declines with age," she said. "They had sophisticated evidence about how the lung capacity of people over 45 declines."
"In the air traffic control case there was hardly any evidence at all and when you don't have evidence it looks like discrimination, like you are acting on a stereotype of how older people behave," she said.
"This is the first reported ECJ [the Court of Justice's former name] case to consider the circumstances in which age may be a genuine occupational requirement and the Court has adopted a very broad interpretation of the defence," she said.
See: The ruling
OUT-LAW News, 21/01/2010
Europe's top court has said that some employers can stop people as young as 30 from applying for some jobs because they are too old. UK Employment Tribunals will have to take account of the ruling in age discrimination cases, an expert said.
The Court of Justice of the European Union said that Germany was allowed to keep in place a law which said that people over 30 could not apply to its fire service. Germany had argued that its recruits needed to be younger than that age so that they could do 15 or 20 years of active service before being moved off frontline duties.
Employment law expert Catherine Hey of Pinsent Masons, the law firm behind OUT-LAW.COM, said that the ruling will have an effect in the UK.
"These cases are relatively rare, but it will be binding and Employment Tribunals will have to apply it as far as possible within UK law," she said.
The ruling conflicts with a Tribunal decision last year which said that it was unlawful age discrimination to bar applicants for air traffic control positions who were over 36.
German authorities said that it was essential to ensure that recruits were under 30 to ensure that, once older workers were moved away from frontline duties, there was a plentiful supply of younger workers available.
The European Union's Equal Treatment Directive allows employers to treat workers of different ages differently when there is a 'genuine occupational requirement'.
"Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate," says Article 4(1) of the Directive.
The Court said that the German fire service's actions fell within this exemption.
Hey said that this was a rare example of a successful 'genuine occupational requirement' defence.
"Using the genuine occupational requirement is a novel argument that hasn't been run before in reported cases," she said.
Hey said, though, that the Court of Justice had made a leap of faith in its ruling.
"It is a kind of direct discrimination by the back door. What the Court is doing is saying that if you have a genuine occupational requirement you can have an age bar," she said. "It has jumped to that idea with no particular analysis."
Hey said that the German case was very different to last year's UK Employment Tribunal case.
"In the German case there was very clear evidence that the performance of firefighters declines with age," she said. "They had sophisticated evidence about how the lung capacity of people over 45 declines."
"In the air traffic control case there was hardly any evidence at all and when you don't have evidence it looks like discrimination, like you are acting on a stereotype of how older people behave," she said.
"This is the first reported ECJ [the Court of Justice's former name] case to consider the circumstances in which age may be a genuine occupational requirement and the Court has adopted a very broad interpretation of the defence," she said.
See: The ruling
