The topic of age discrimination and justification of discrimination on the grounds of age has come into the spotlight again with the release of two recent European Court of Justice decisions.
In the case of Wolf v Stadt Frankfurt Am Main, the ECJ decided that a limit of 30 years of age for new recruits to the fire service in Germany was justified as a genuine occupational requirement. As a result it was not discriminatory. The Court heard detailed scientific and statistical evidence from the German authorities to support their position that heavy duties were mainly carried out by those less than 45 years of age and the limit was justified by the need to have the majority of the force able to physically carry out these demanding tasks.
The case of Petersen v Berfungsausschuss fur Zahnarzte fur den Bezirk Westfalen-Lippe concerned a law which set a maximum age for panel dentists at 68 within the German National Health Service. The Court looked at the fact that a Member State may find it necessary to set an age limit for the practice of a medical profession in order to protect the public health either from the point of view of the competence of dentists (as it is thought that the performance of dentists declines after a certain age) or for the financial balance of the national health care system. The German authorities argued that this legislation fell under a specific section of the Equal Treatment Framework Directive which exempts national laws which are necessary for the protection of health. However the ECJ, whilst accepting that it could be a legitimate objective, to ensure the competency of the health service did not believe the means employed were proportionate as it did not apply to dentists working in the private sector.
Article 6.1 of the Equal Treatment Directive does however allow such a measure where its aim is to share out employment opportunities among the generations in the profession of panel dentists, if taking into account the situation in the labour market concerned, the measure is appropriate and necessary for achieving that aim.
So whilst the EU Equal Treatment Framework Directive does not exclude the practice of setting an age limit, it is for the domestic courts to decide whether or not it is a proportionate means of achieving a legitimate aim.
Both these cases provide some guidance for employers on the setting of age limits and the circumstances under which they might be justified under the Equal Treatment Framework Directive.
However the parameters of the objective justification defence to age discrimination are not yet firmly established and for now Member States and employers should continue to tread carefully in circumstances where they try to impose age limits.