Age discrimination - candidates in their thirties classed as too old?
Those of you who follow the cricket will be aware of the recent
retirement of Andrew "Freddy" Flintoff from Test cricket at the
grand old age of 31. We are still waiting for the "Heyday" decision
from the House of Lords, on whether a national default retirement
age of 65 can be justified by the Government, but in the meantime,
there has been an interesting employment tribunal case on when an
employer can justify an "age bar".
In Baker v National Air Traffic Services Ltd, the setting of an
absolute 'age bar' on applicants to train as air traffic
controllers, which had the effect of excluding anyone aged 36 or
over, was held to amount to direct age discrimination which could
not be justified. As a result, an employer had acted unlawfully
when it refused to consider an application from a candidate aged
50.
NATS Ltd is the organisation responsible for training air
traffic controllers for UK airports. B had a degree in physics, a
private pilot's licence, and had completed all the theoretical
training to become a commercial pilot. In August 2007, when B was
50, he saw that NATS Ltd was advertising for trainee air traffic
control officers (ATCOs). He satisfied all the eligibility criteria
to apply, with the exception of age: NATS Ltd operated an absolute
bar on considering applications from anyone aged 36 or over.
B brought a claim to an employment tribunal, arguing that this
age bar was directly discriminatory on the ground of age, contrary
to Regs 3(1) and 7(1) of the Employment Equality (Age) Regulations
2006 SI 2006/1031. NATS Ltd did not deny that it operated an age
bar. The main issue in the case was whether the difference in
treatment on the ground of age could be justified as a
proportionate means of achieving a legitimate aim - that is, once a
legitimate aim is established, is the current practice the least
discriminatory way of achieving it ? In support of justification,
NATS Ltd submitted a number of expert reports which, it argued,
showed a link between age and a decline in the cognitive functions
essential to success as an air traffic controller.
Beginning with the issue of whether the age bar pursued a
legitimate aim, the tribunal did accept the legitimacy of the
following aims, which reflected business needs: achieving a high
success rate in training; providing a reasonable period of
post-qualification service, so as to justify the £600,000 that NATS
Ltd asserted it cost to train an ATCO; providing an adequate supply
of ATCOs for the United Kingdom; and ensuring that safety processes
and systems were not compromised.
The tribunal was not, however, so accepting on the question of
proportionality. It noted that nowhere in the evidence was there
any suggestion that alternatives to the age bar had been seriously
considered. Moreover, while there was expert evidence, its value
was dubious. The evidence did demonstrate a link between age and a
decrease in the cognitive functions necessary to be an ATCO, but
also that the effect of that decline could be mitigated by
experience. NATS Ltd had been unable to show that any ATCO had had
accreditation withdrawn due to an age-related decline in
performance, and there was 'no statistically reliable empirical
evidence of increased risk with age'.
The evidence showed that NATS Ltd had, exceptionally, recruited
ATCOs with relevant experience after the age of 35, and that they
had been successful. Indeed, the tribunal interpreted the evidence
as showing that experience was more important than age in
determining a candidate's success. There was, in the tribunal's
view, a lack of clear evidence that the age bar was reasonably
necessary to achieve any of the stated aims, and some evidence to
show that it contributed to an under-supply of ATCOs. NATS Ltd had
relied on speculation and assumption to apply an absolute age bar,
which excluded a number of suitably qualified candidates. As a
result, the age bar was not a proportionate means of achieving any
of NATS Ltd's aims, and B's claim was successful.
Although only a first-instance decision, so other tribunals are
not bound to follow it, the tribunal's judgment is interesting for
the rigorous approach taken to the question of objective
justification. If the level of scrutiny applied to the employer's
reasons in the present case is widely adopted by tribunals,
employers or organisations seeking to justify an age bar would have
to provide substantial evidence of why it is reasonably necessary
and why it is preferable to any alternatives. The tribunal was also
concerned that NATS Ltd, in reviewing its age bar, had apparently
decided that it wanted to maintain the status quo and set about
finding evidence to support it. Employers undertaking similar
reviews of their policies should therefore be wary of pre-judging
the policy at issue.
By Emily Cox, Solicitor, Employment Team, Dickinson Dees
LLP