In two recent decisions the European Court of Justice (ECJ) has given helpful indications about what may be acceptable in age limit impositions in age discrimination cases. Neither case came form the UK but the decisions will impact on future UK decisions of the courts and will assist employers and their HR departments when wrestling with these knotty problems. It is tempting to remark that the decisions are common sense but as that attribute does not always apply in employment law do not hold your breath for more of the same.
Both cases raise interesting points. The Wolf case is the first reported ECJ decision to consider the circumstances in which age may be a “genuine occupational requirement”. It had been thought previously that the law should be construed narrowly, i.e . leaning towards the employee. However, the judgment in Wolf suggests that that may not be so because it allowed the German Fire Service to restrict entrants to under age 30.
The other point of note is that, in both cases, the ECJ accepted that age-related decline in performance is capable of justifying directly age discriminatory rules. In the Wolf case, the German government produced substantial expert evidence to support its case that natural physical decline would be a serious concern for those working in the fire service. In the second, Petersen, case, by contrast, the ECJ appeared to accept age-related decline as a valid assumption on which an objective justification may be based, but eventually rejected it because the age bar did not apply uniformly across the public and private sectors.
These do not give employers a free hand in applying arbitrary limits but good evidentially supported arguments should be helpful to employers as long as there is consistency – possibly across an industry or parts of an industry. Thus, an airline introducing a 50 years old age limit for hiring pilots might well be in difficulty if other airlines were all forcibly retiring at 60.
