Employers need to tread carefully when imposing age restrictions in calls for the recruitment of personnel. Advocate General Mengozzi recently warned that so doing could be considered to be illegal in terms of EU law and can only be justified in specific cases.
The EU’s directive providing for equal treatment in employment makes provision for the eradication of any form of discrimination based on various grounds in so far as employment is concerned. One of these grounds relates specifically to age in that any discrimination in employment based directly or indirectly on age is as a rule clearly prohibited.
Nonetheless, the said directive admits of an exception common to all the grounds of discrimination mentioned in the directive whereby member states may permit discriminatory treatment because of the nature of the particular job provided that the job requisite is a genuine, legitimate and a determining one.
In so far as age restrictions are concerned, the directive permits member states to allow for differences of treatment on grounds of age if, within the context of national law, such differences are objectively and reasonably justified by a legitimate aim of social policy. Furthermore, the means for achieving such an aim must be appropriate and necessary.
The opinion of Advocate General Mengozzi was delivered upon an examination of the following facts. Vital Pérez challenged a decision of the municipal council of a Spanish city to approve a notice to recruit local police officers which specifically provided as one of the requirements that the candidates could not be older than 30 years of age. The municipal council justified its decision on the basis that the Court of Justice of the European Union had in a previous case ruled in favour of such an age restriction in a similar case concerning access to posts in the fire service in Germany. The Spanish Administrative Court seized of the case requested guidance from the CJEU as to whether it was permissible in terms of EU law to impose such age restrictions for candidates applying for the post of local police officer.
In his opinion, the Advocate General referred to the general exception found in the EU directive. He maintained that in this particular case, it was not possible to conclude that the possession of “exceptionally high physical capacities” was a genuine and determining requirement for performing the function of local police officer in the region in question. He observed that the activities of such officials, as distinct from the ones of those employed in the fire service, cover several areas and include operations which may require the use of physical force as well as those which are less demanding from a psychophysical point of view. Furthermore, the physical capacities linked to the job of a police officer are not necessarily related to a particular age and he concluded that the maximum age limit of 30 years of age was neither proportionate nor necessary. He asserted that the possession of physical capacities could be adequately assessed on the basis of the physical tests and of the medical exclusions laid down in the notice of competition.
Mengozzi also observed that not all public interest objectives can be invoked by member states under the specific exception relating to age as found in the directive, but only those which relate to social policy objectives. By way of example, he referred to circumstances when an age restriction is necessary in order to ensure that the candidates in question are capable of receiving the required training or ensuring that new recruits serve for a reasonable period before retirement or be transferred to activities that are less demanding from a psychophysical point of view.
The Advocate General concluded that the age restriction imposed in this particular case could not be said to militate in favour of the attainment of such social policy objectives as required by the directive.
Equal treatment in employment is the rule and not the exception. Any exceptions to such rule will always be interpreted strictly so as to ensure that at all times all employees and candidates for a post are safeguarded against any form of discrimination.
mariosa@vellacardona.com
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.