Wolf v Stadt Frankfurt am Main
In this case the European Court of Justice (“ECJ”) held that a German law setting a maximum recruitment age of 30 for “active” roles in the Frankfurt fire service constituted direct age discrimination, but that it was not unlawful.
The ECJ considered whether the German law was compatible with the European Communities’ Equal Treatment Framework Directive (2000/78/EC) (“the Directive”) upon which the UK Age Discrimination Regulations are based and held that the maximum recruitment age was not contrary to the Directive. It did so on the basis that the maximum recruitment age was a “genuine occupational requirement” due to the high physical capacities required for the role, and it was objectively and reasonably justified by a legitimate aim, and that the means of achieving that aim were proportionate.
Employers might view this decision as a basis on which to justify direct discrimination on protected grounds other than age, by relying on the broader “genuine occupational requirement defence”, which applies to all of the protected grounds. However, it seems unlikely that tribunals will be inclined to allow employers to objectively justify direct discrimination by reference to a genuine occupational requirement more freely as a result of this decision as it is particular to the circumstances of the case.
In this case there was a clear and unequivocal relationship between age and the high physical fitness required for the job, and the ECJ is likely to have been influenced by the special role of emergency services. Interestingly, the ECJ chose only to consider the lawfulness of the age limit in the context of “genuine occupational requirement” and not the more common test of whether the restriction constituted direct discrimination capable of objective justification (as was anticipated by the German Court and the Advocate General). However, it appears likely that the ECJ would have held that the maximum recruitment age would have been directly discriminatory, but have been objectively justified.
Article 4 of the Directive allows for lawful differences of treatment based on any protected characteristic (not just age) where that characteristic is a genuine occupational requirement by reason of the nature of the particular occupational activities concerned or the context in which they are carried out. In order for the difference in treatment to be lawful by virtue of Article 4, the objective sought must be legitimate and the means of achieving it (i.e. the characteristic related requirement), proportionate.
Mr Wolf applied for an “intermediate career” post in the Frankfurt fire service. The post was physically demanding, involving fighting fires and rescuing people. Mr Wolf was told by the City of Frankfurt that he could not be considered for the post because he was older than the maximum age limit of 30 years. He brought a claim seeking compensation on the basis that the maximum recruitment age constituted unlawful age discrimination. The Frankfurt Administrative Court referred a list of questions to the ECJ relating to the compatibility of the German legislation with the Equal Treatment Directive.
Focussing on the nature of the role in question, the ECJ found that it required exceptionally high physical capacities and that the possession of such high physical capacities could be regarded as a genuine and determining occupational requirement. The ECJ concluded that the German Government's aim in setting the maximum recruitment age was to guarantee the operational capacity and proper functioning of the professional fire service and that this was legitimate.
On the issue of proportionality, the ECJ accepted that recruitment at an age above 30 would not allow the persons so recruited to carry out the physically demanding duties for a sufficiently long period, and that a higher recruitment age would result in too few employees being capable of performing those duties. It therefore considered the age restriction to be appropriate and proportionate to the German Government’s legitimate aim.