Can an age limit of 35 on recruitment ever be justified? The ECJ has found in Gorka Salaberria v Academia Vasca de Policia y Emergencias that it can in certain circumstances.
The Basque Police and Emergency Services Academy (the Academy) submitted that they needed an upper recruitment age as the physicality of the job, length of training and length of time post training at full capacity meant that the age limit for recruitment could be justified. They had evidence of physical decline from 40, and claimed that by 55 police officers were not fully capable of performing their role. Additionally, and quite crucially, their figures showed that the age profile of the force was such that by 2025 over half of the officers would be aged 55-65, so this emphasised the need to recruit younger staff to ensure there were sufficient officers going forward. The ECJ found this to be lawful on the basis that the Academy had a legitimate aim, namely the requirement of particular physical capabilities in order to be able to perform the essential duties of the role, and that this was a proportionate way of achieving that aim.
What is clear, however, is that employers are not able to rely on assumptions about physical or mental abilities relating to age and that clear evidence is required to justify any age restrictions. The evidence must be gathered before an age restriction is imposed, rather than trying to retrospectively justify a restriction already made. This case also highlights that an age limit that can be justified now, may not still be justifiable in ten years’ time, when the age profile of the force may have balanced out. For example, if the satisfactory “age pyramid” is achieved, then it may be more appropriate in future to conduct stringent physical tests to determine whether someone is still able to perform their duties.
- The threshold for justifying age limits on recruitment is fairly high and the evidence must be in place before the restriction is imposed.
- Employers cannot rely on assumptions about physical or mental abilities, and age.
- Age limits may need to be revisited over time as the age profile of the organisation changes.