We consider the recent decision of the European Court of Justice in Gorka Salaberria Sorondo v Academia Vasca de Policía y Emergencias (C-258/15) on whether a Spanish police force could impose an upper age limit of 35 on job applicants.

The Basque Police and Emergency Services Academy (the Academy) issued a notice for the recruitment of police officers in the Autonomous Community of the Basque Country, which stipulated that candidates had to be under the age of 35. Mr Salaberria Sorondo was aged over 35 and brought a claim of age discrimination in the Spanish courts. The Spanish court referred the matter to the European Court of Justice (ECJ) to consider the application of the Equal Treatment Directive (the Directive) to the case. Although this case was brought against the Basque police force, it is of interest to UK employers as it concerns the interpretation of the Directive, on which the Equality Act is based.

Article 4(1) of the Directive provides that a Member State may provide that “a difference of treatment which is based on a characteristic related to … [age] … shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or 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”. We refer to this potential defence as the occupational requirement defence.

The Academy produced a range of evidence in support of its argument that the occupational requirement defence applied to its upper age limit for candidates to join it as police officers. It produced reports that it claimed demonstrated that, from the age of 40 onwards, the operational performance of officers of the Basque police force declined due to longer recovery times after physical activity. Furthermore, it produced reports showing that a Basque police officer aged over 55 could no longer be considered to be in full possession of the capabilities necessary for the proper performance of his duties without risk to himself and third parties.

The Academy also produced data forecasting that the average age of Basque police officers was due to rise significantly in future, such that by 2018 more than half of its police officers would be aged 50-59, while by 2025 more than half of its police officers would be aged 55-65. The Academy argued that this made forward planning necessary to ensure the recruitment of younger staff better equipped to take on physically demanding tasks.

The ECJ decided that the Academy could successfully rely on the occupational requirement defence in this case, subject to the Spanish court satisfying itself that the evidence relied on in the various documents produced by the Academy was accurate.

The ECJ concluded that the relevant occupational requirement that applied in this case was the possession of particular physical capabilities in order to be able to perform essential duties of the Basque police force, including the protection of people and property. The legitimate objective being pursued was to preserve the operational capacity of the Basque police force and to guarantee that it functioned properly, by ensuring that newly recruited officers were capable of carrying out the most physically demanding tasks over a relatively long period of their careers.

The ECJ also considered whether the Academy’s operation of an upper age limit for job applicants was proportionate in the circumstances, and in particular whether the introduction of demanding physical tests as part of the recruitment process would have been a less restrictive alternative. The ECJ concluded that this would have not have been a viable alternative since the legitimate objective that was being met by the recruitment age limit involved “re-establishing a satisfactory age pyramid” that took into account not only a job applicant’s physical abilities at the time of recruitment but also years into the future.

The ECJ noted that previously it had decided in another case (Pérez) that an upper age limit of 30 years on the recruitment of local police officers in the municipality of Oviedo in Spain was contrary to age discrimination legislation. However, it considered that Pérez could be distinguished from this case on the basis that the duties of local police officers were significantly different from those of the Basque police force. Basque police officers were required to carry out operational duties that could require physical force in extremely difficult conditions, which included (unlike local police officers) the responsibilities of state security forces.

Given that the ECJ had found that the occupational requirement defence applied, it decided that it did not need to consider the potential alternative defence of objective justification, and it therefore declined to comment on whether the requirements of the objective justification defence would also have been satisfied in this case.

The ECJ’s decision does not give a green light for UK employers to introduce an upper age limit for recruitment. The ECJ emphasised the particular reasons for its decision, including the especially physically demanding duties of Basque police officers. The critical public service that Basque police officers perform in carrying out the duties of state security forces and the potential consequences of an aging Basque police force in light of the future workforce projections that had been supplied to the ECJ also appear to have been factors in the decision.

It is also worth noting that, while a form of the occupational requirement defence is available in the case of age discrimination under the Equality Act in the UK, that defence is arguably narrower than that set out in the Directive. The defence under the Equality Act potentially applies where age (rather than a characteristic related to age, as permitted by the Directive) is an occupational requirement. Given that in this case, when considering the occupational requirement defence, the ECJ’s focus was on physical characteristics related to age, this raises the question of whether, if a similar case arose in the UK, the UK courts would reach a different decision. This point has not been tested in the UK courts yet.

This decision is in marked contrast to the UK case of Baker v National Air Traffic Services Ltd (ET/2203501/2007), in which an employment tribunal found that a blanket ban on anyone aged 36 or over applying to become a trainee air traffic controller was age discrimination and could not be justified, despite the safety-critical nature of the role.

The wider lesson for employers from this case is that where an employer wishes to defend an age discrimination claim on the basis of occupational requirement or objective justification, it must among other things be able to show that any evidence that it relied on in reaching the decision complained of is sufficiently detailed and scientifically rigorous, and that it approached the evidence with an open mind rather than seeking to find evidence to justify a pre-determined decision. The Basque police force case is the latest in a line of cases that demonstrates that the bar is set high in this respect.