An English judge has refused a pilot’s claim for a judicial review into the age restrictions imposed on commercial pilots.

Captain Wayne Bayley, who was forced to leave his job as a pilot with TUI Airways last year after passing the statutory retirement age, applied to the Administrative Court in London to challenge the Civil Aviation Authority (CAA) and EU regulations prohibiting people aged 65 and above from flying commercial planes.

According to Bayley, the age limit is now “out of date”, and “with suitable medical examinations and precautions, it is safe for pilots over the age of 64 to fly commercially with another pilot under the age of 60.”

With the European Aviation Safety Agency (EASA) due to publish a report regarding its safety regulations in early 2019, Mr Justice Jacobs rejected Bayley’s claim for a judicial review and ruled that it was “reasonable” for the CAA to wait for the publication before amending its rules.

It is possible, the judge said, that the report might deal with pilots over the age of 64. If it does not, then it may call into question the CAA’s duty in relation to incomplete evidence.

As the UK’s national regulator, the CAA could seek to change the EU regulations if it has the evidence to do so, Matthew Reeve, counsel for Bayley, told ALN. “While the scope of EASA’s research is not yet known, it may provide a basis for change in the regulations”, he added. “The issue is not dead, it is just deferred.”

Under the existing EU Aircrew Regulation 1178/2011, those over the age of 60 are only allowed to fly in multi-pilot operations with another pilot under the age of 60, and those who are 65 and over are not allowed to fly at all.

The International Civil Aviation Organisation first introduced the prohibition of commercial pilots over the age of 64, which was then adopted into EU and in turn UK law, Reeve explained.

“Brexit obviously might have an impact on the regulations,” he told ALN, but the nature of the UK’s withdrawal from the EU still needs to be determined.

During the proceedings, the claimant argued that certain countries “with well-regulated and highly-respected systems of civil aviation” do allow commercial flying over the age of 64.

For example, Australia, Canada and New Zealand have no age limits and rely solely on medical examinations, while Japan increased its age limit from 64 to 68 in 2016.

Bayley also argued that the CAA had breached Section 149 of the Equality Act 2010, suggesting that it had not acted rigorously enough to see if the age limits were still necessary based on medical evidence.

In its recent decision in Fries v Lufthansa, the European Court of Justice declared that the age prohibition did result in the unfavourable treatment of people of a particular age group, but this was justified in the interest of public safety.

The CAA argued that this ruling was conclusive, while Bayley alleged that it was based on the premise that evidence supporting the age limitations was lacking and identified the need for further investigation.

EASA’s planned investigation into its own safety regulations is due “in December 2018 or January 2019.”

Counsel to Captain Wayne Bayley

  • DMH Stallard LLP

Partner Simon Elcock

Barrister Matthew Reeve at Quadrant Chambers

Counsel to the Civil Aviation Authority

  • Office of the General Counsel

Andrew Tabachnik QC at 39 Essex Chambers