age discrimination European Court decisions police

Is it discriminatory to exclude over 35s from police recruitment?

Metropolitan_Police_capIn the UK applicants for police recruitment have to be at least 18 years old. There is no upper age limit but the normal retirement age is 60. Eligibility requirements also cover such matters as nationality, criminal record, tattoos, financial status, physical fitness, health and eyesight.

In Gorka Salaberria Sorondo v Academia Vasca de Policia y Emergencias the European Court of Justice (CJEU) was asked to consider whether an age limit of 35 for a competition for recruitment to the Basque Police was discriminatory on the ground of age. Mr Sorondo brought proceedings in the Spanish High Court concerning the decision of the Director-General of the Basque Police and Emergency Services Academy, objecting to the conditions for participation in the competition and, in particular, the requirement of candidates to be under 35 years old. He was over 35 and claimed that there was no justification for the age limit imposed.

Local legislation provided as follows:

A candidate for recruitment as a police officer must be aged 18 or over and under 35. However, with respect to recruitment to local forces, the upper age limit may be revised taking into account services provided within the local administration, in the local police forces.

The High Court referred the question to the CJEU, noting as it did so that there was a previous ruling that an upper age of 32 years for the recruitment of Basque police officers complied with the requirements of proportionality and that a similar decision permitted a limit of 30 years for intermediate career posts in a fire service.

The judges of the CJEU decided that the relevant directive does not preclude national legislation that candidates for police force posts responsible for performing operational duties must be under 35 years of age. Although there was clearly a difference in treatment based on age, that is not to be treated as discrimination where the possession of a particular physical capacities, constitutes a genuine and determining occupational requirement. It was noted that duties such as arresting people might require physical force so that the possession of particular physical capabilities in order to perform essential duties may be considered a genuine occupational requirement for the pursuit of the particular profession.

It was also noted that when the average age of the police force was significantly rising it was essential to plan for the replacement of older officers by the recruitment of younger staff. A young police officer would be able to perform physically demanding tasks more effectively and older police officers (56 years and over) qualified for reduced annual working time and no requirement to work at night.

Although the rationale is sound I am bound to observe that it relies on some sweeping assumptions concerning the physical fitness of those who are 35 and over. While it might be correct that perhaps the majority of those aged 35 and over might be, on the whole, less fit than those aged 18 to 34, compete disqualification from the process on the ground of age leaves no room for candidates who are 35 and over and who could be considerably fitter than the average 18 to 34-year-old. The removal of any discretion in this respect seems harsh and, with the increasing overall fitness of many people who are older, does seem to border on undermining the discrimination that the legislation was designed to protect against.


Martin Malone

By Martin Malone

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