Speed read - the implications of the case

This case will be of interest to all emergency services employers who, to a greater or lesser extent, rely on their staff maintaining a certain level of physical fitness. Despite the Academy being successful in this case, the ECJ’s decision is nevertheless a reminder that it will always be difficult for an employer to justify an upper age limit in recruitment, even in physically demanding roles. The Academy’s success in this case was largely based on the very specific evidence it submitted, both in respect of the physical capabilities of officers at particular ages, and the imbalance of the current age structure. Without this evidence, it is likely that the Academy would not have been able to demonstrate the proportionality of the age restriction. 

It is also important to note that the Basque police force provides particular duties equivalent to those of state security forces. Their duties are not the same as those of a local police force, for example, and therefore many emergency services in the UK would not be able to justify the particular physical requirements imposed in this case.  Emergency services employers need to proceed with great caution when imposing an age restriction, and ensure that they have cogent evidence to support the choice of a particular age limit.

The full details of the case

The Basque Police and Emergency Services Academy imposed an upper age limit of 35 on applicants to its police force. Mr Salaberria Solondo brought a claim before the High Court in the Spanish autonomous region of the Basque country, arguing that this age requirement could not be justified as it restricted access to posts in the public sector without reasonable grounds. He argued that the provision was in breach of the Equal Treatment Directive (on which the UK Equality Act is founded). 

The Basque court referred the question to the ECJ.

The ECJ held that, although the provision did have the effect of restricting access to jobs, it was not unlawful as it arose from a genuine occupational requirement. Further, ensuring the operational capacity and proper functioning of the police force was a legitimate objective, and the measure was a proportionate means of achieving that objective. 

The ECJ noted that a police officer’s duties may require the use of physical force, and there may be significant consequences for officers, third parties and for the maintenance of public order if officers lacked the necessary physical capacity. Significantly, the Academy was able to submit evidence that the operational performance of officers in the Basque force declines after the age of 40, and after the age of 55 officers can no longer be considered capable of fully performing their duties. The Academy was also able to submit evidence relating to the age profile of the police force and the need to recruit younger officers in order to establish a satisfactory “age pyramid”. On the basis of the evidence, the ECJ concluded that the age restriction was proportionate, and that a less restrictive alternative, such as submitting the officers to stringent physical tests, would not meet the objective.

For further information on how the ruling in this case might affect your organisation, please contact Gary Hay, Alessandra Gettins or Claire Reynolds.