Recruitment and Age Discrimination - Objective Justification

Introduction to Age Discrimination in An Garda Síochána

A recent decision of the Workplace Relations Commission (WRC) casts doubts on the legality of age restrictions for certain profession that have hereto justified these restrictions by the physical nature of the work undertaken.

In the separate cases of Fitzpatrick & Boyle (the Applicants) v Commissioner of An Garda Síochána, it was held that the imposition of an age limit of thirty-five years, for entry to the profession, was a crude method of determining physical suitability for membership of the Irish police service. 

This case may have consequences for applicants beyond An Garda Síochána. Organizations such as the Defence Forces and Fire Brigade continue to reject applications on age grounds, citing the robust physical requirements, pertinent to their roles.

Background

The Applicants stated that they applied to be members of An Garda Síochána in October 2005 through a competition conducted by the Public Appointments Service (PAS). The Applicants stated that within days they received a response from PAS advising them that they were ineligible for consideration as they were over thirty-five years old – which was the upper age limit that applied. 

The Applicants contended that this amounted to discrimination of them on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998-2004 and contrary to section 8 of those Acts. 

An Garda Síochána rejected the assertion that they discriminated against the Applicants, stating that the upper age limit is prescribed by the Garda Síochána (Admissions and Appointments) (Amendment) Regulations 2004 and that the operation of this upper age limit is objectively justified in terms of sections 34 and/or 37 of the Employment Equality Acts 1998-2004.

Operational Requirements for Age Discrimination

The legitimate aim pursued by An Garda Síochána is to ensure the ongoing and proper functioning and operation of An Garda Síochána. 

Counsel for An Garda Síochána submitted a number of factors which should be examined in the context of assessment. An Garda Síochána is unique in that it is a single unified police force. Members are generally unarmed and are required to perform a wide range of tasks across a number of areas that An Garda Síochána is required to provide policing to. 

Counsel for An Garda Síochána submitted that it therefore forms an integral part of the State security services and that the need to provide these services is constant, requiring ‘fit and able’ persons to undertake the work prescribed.

Objective Justification for Age Discrimination

Counsel for An Garda Síochána sought to rely on the Decision of the Equality Tribunal in Saunders v CHC Ireland Ltd in terms of the argument that the possession of a high level of physical capacity is a characteristic related to age which amounts to objective justification. 

EU Commission’s comments in its Paper “Age Discrimination and European Law” that “the use of such age limits will have to be shown to be clearly necessary; even a pressing legitimate such as public safety cannot justify the sweeping use of age limits where individual assessment is possible.”

Dr. Murphy-Griffin, a lecturer at Waterford Institute of Technology in the Department of Sport and Exercise, located in the School of Health Sciences, appeared for An Garda Síochána. The witness stated that the research reviewed in her Report clearly highlights the importance of physical fitness for the proper functioning of a police officer regardless of age or gender, in particular in safely dealing with arrest scenarios. She added that it is commonly agreed that physical fitness decreases with age and that its effects vary according to several factors, including life history, genetics, lifestyle and healthy behaviour and she noted that peoples’ cardio and respiratory fitness will decline at different rates having regard to these factors.

Dr. Thomas, a former senior ranking police officer in the UK, attended the Hearing on behalf of the Applicants. He stated that for several years he was Assistant Chief Constable at Kent Police Force, six years of which they was responsible for Recruitment, Personnel, Training and Professional Standards. The witness stated that Kent Police force currently has no upper age limit for recruitment to the force - a characteristic common to many other police forces in the UK. Dr. Thomas detailed the fitness requirements operated by Kent Police Force. He added that it was a standard test, which applied, inter alia, to all police officers in the force, including recruits, regardless of gender. He further stated that the test was mandatory and must be completed and passed every year. 

Professor Moyna, a Professor of Clinical Exercise Physiology at Dublin City University, appeared for the Applicants. He expressed the view that aging is a multidimensional construct and opines that it has a primary and secondary component. Primary biological aging refers to the progressive deterioration of one’s physiological function which occurs as a person gets older. Secondary aging refers to “accelerated deleterious structural and functional age-related changes caused by lifestyle factors that quicken the rate of biological aging”. The witness added that reducing sedentary behaviour and maintaining levels of physical activity is the single most important means of limiting the rate of decline in physiological function. Professor Moyna added that in his view, “selecting an arbitrary maximum chronological age of 35 years for entry to An Garda Síochána assumes that all individuals undergo the same age-related deterioration in physical function and fails to take account of the complex nature of biological aging, and in particular, the role of a healthy lifestyle.”

Proving Discrimination on Age Grounds

Section 85A of the Employment Equality Acts 1998- 2004 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of the Tribunal, the Workplace Relations Commission and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him his case cannot succeed.

Application of Equality Law to An Garda Síochána Recruitment

Having carefully considered all of the written and oral evidence adduced by the parties, the WRC was satisfied that the Applicants were excluded from proceeding to the next stage of the process solely because of their age. It is at this point that the less favourable treatment of them crystallised. The possibility that they may have not succeeded at any subsequent element of the selection process is irrelevant. The fact is that they were denied that opportunity on the sole basis that they were over the upper age limit which applied for eligibility to the competition.

In Donnellan v The Minister for Justice, Equality and Law Reform McKechnie J held that the imposition of a mandatory retirement age is prima facie discrimination on grounds of age in terms of the Framework Directive – which is transposed into Irish law by the Employment Equality Acts 1998-2004. The view expressed by McKechnie J must equally apply to the operation of a mandatory upper recruitment age. The WRC therefore found that the Applicants had established a prima facie case of discrimination on grounds of age and the burden then shifted to An Garda Síochána to rebut the inference raised.

The CJEU held in Wolf that lung function, musculature and endurance diminish as a person gets older. In Sorondo, the Court held that “police work is both physiologically and psychologically demanding which over time leads to a deterioration of adaptation mechanisms and an increase in chronic diseases that cause the functional age to be higher than in other professions” and that “from the age of 40 years there is an age associated decrease in resilience to stress and a subsequent inability to perform another task for a variable period of time.”

Having carefully considered the matter, the WRC was satisfied that the characteristic of possession of a high level of physical capacity is a characteristic related to age and that the third limb of the test is satisfied.

Was Age Discrimination Justified? 

The WRC found that the operation of the upper age limit of 35 years was not proportionate in terms of Article 4(1) of the Framework Directive and section 37(2) of the Employment Equality Acts 1998-2004. The WRC found that it goes beyond what is appropriate and necessary and that the objective pursued can be achieved by other means.

Counsel for the Applicants stated that the remedy sought by the Applicants was to be permitted to have their applications for selection considered and not regarded on the sole basis of their age.

The WRC noted that the Applicants were now at an age which would significantly reduce their ability to provide service for a reasonable period of time so that the State could recoup its investment in training, always assuming that they would be successful in all aspects of the selection process and successfully complete the training period, which is now two years.

Consequently, the WRC considered compensation to be the most appropriate remedy in the circumstances. 

The WRC ordered that An Garda Síochána pay the Applicants the sum of €12,700 by way of compensation for the distress suffered by them as a result of this discrimination.