Employment Law Age Discrimination

By | April 1, 2010

Employment Law Age Discrimination

Two recent judgments passed down by the European Court of Justice (ECJ) raise interesting points in relation to age discrimination.

The first case, Wolfe v Stadt Frankfurt AM Main (C-229/08), concerned a German law restricting applications to join the Fire Service to those under the age of 30.  The ECJ held that this law could be defended as a genuine occupational requirement under Article 4(1) of the EU Equal Treatment Framework Directive (No.2000/78).  Mr Wolfe applied for a job in the Fire Service in Frankfurt, but was told that his application would not be considered as he was over 30.  He brought proceedings in the German Administrative Court on the basis that the law restricting applications to join the Fire Service to those under the age of 30 was contrary to the general probation on age discrimination in the Framework Directive.  The Administrative Court made a reference to the ECJ on the compatibility of German Law with the Directive.

Under Article 4(1), a difference in treatment based on a characteristic related to age does not constitute discrimination where the characteristic is a ‘genuine and determining occupational requirement’, provided that the objective is legitimate and the requirement proportionate.  The ECJ decided that the ultimate aim of ensuring efficiency within the Emergency Services is a relevant legitimate objective because the possession of ‘high physical capacities’ may be regarded as a genuine and determining occupation requirement to be a fire fighter.  It was accepted that this was related to age.  The ECJ went on to hold that a maximum recruitment age of 30 was proportionate, as it was accepted that anyone over this age limit was more likely to have diminished physical capabilities.

In the second case, Petersen v Berufungsauschuss Fur Zahnarzte Fur Den Bezirk Westfalen – Lippe (C-3414/08), the ECJ considered a German Law setting a maximum age limit of 68 for Dentist to be accredited to work in the German National Health Service.  The ECJ identified two different objectives that might be considered to be necessary to the protection of health; ensuring the competence of dentists accredited to work in the NHS, and ensuring the financial viability of the service.  The ECJ held that both of these were potentially legitimate aims.

These judgments suggest that the application of Article 4 should be construed more widely.  In both case, the ECJ accepted that age-related decline in performance is capable of justifying directly age discriminatory rules.  This has potentially enormous consequences for employers’ ability to deal with situations “legitimately” and “proportionately”.

However, the rule could not be considered proportionate given that it only applied to those dentists working in the National Health Service.  Dentists working exclusively in the private sector were not subject to the cut off at 68.  However, the ECJ thought that the age limit could potentially be justified as a means of ensuring that the National Health Service remained financially viable.  It would be for the National Court to identify which of these aims were pursued by the age limit and gave judgment accordingly.

The upshot of these cases is that national governments may have wider powers to use age as a relevant factor when appointing people to specific roles within the emergency services or health service.  Only time will tell how the UK Courts will interpret these judgments. WATCH THIS SPACE!

Nick Rowe

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