Facts

Until June 2006, candidates to be trained as air traffic controllers had to be under a set age limit, originally 26 but more lately 30. In anticipation of the introduction of the age regulations in 2006, this age limit was abolished. However, in light of concerns within the Service, an age limit of was re-introduced in April 2007 and set at 36.

Mr Baker decided to apply to be trained in August 2007. He satisfied all the conditions save for the age bar as he was 50 at that time. He therefore brought a claim challenging the age bar as unlawfully discriminatory. The Service accepted that the bar amounted potentially to direct age discrimination but argued that it was justifiable.

The case is important because it is one of the first where the issue of justifying direct age discrimination has been subjected to such detailed analysis over many days of evidence.

The arguments 

In order to justify age discrimination, the employer must show that the treatment represents a proportionate means of achieving a legitimate aim.

The Service put forward the following legitimate aims:

  • Achieving a high success rate in training
  • Providing an adequate number of recruits
  • Securing a reasonable period of service after qualification
  • Ensuring safety was not compromised.

They then advanced a variety of reports and witnesses to support their age bar.

However, despite all their efforts, they did not make a very good job of this...

Decision

The tribunal found that “confusion appears to have infected the respondent’s reasoning throughout”.  Their principal aim was, in reality, to maintain an age bar and this is not a legitimate aim.

Nonetheless, the tribunal went on to consider the Service’s other aims (on the basis that they did not consider them to be its principal aim).

The tribunal noted that the law was unclear as to whether the “legitimate aim” had to be the primary aim, the only aim, or whether it can be the one of a number of aims.

It upheld these alternative aims as being legitimate but rejected the evidence which the Service had put forward in an effort to show that the age bar was a proportionate  means of achieving them.

The tribunal found that much of the Service’s evidence merely amounted to assertions rather than evidence-based fact. In one paragraph the tribunal neatly summarises its conclusions about the Service’s approach and highlights the pitfalls for well-meaning employers with deep-seated convictions:

We do not seek to be critical of the respondent by suggesting that many of the employees appear to have firm views on the potential of older candidates. In the context of this industry, and having regard to the historical background, it is perfectly understandable. The commonly held views proceed from a legitimate wish to ensure safety. However, it is common in discrimination cases that the discrimination is unconscious and may arise from assumptions that are insufficiently considered. Changing these perceptions will be a challenge for the respondent.”

The tribunal did not find that the views of the Service were necessarily wrong but that there was no or insufficient evidence to support them. Their judgment states “The respondent may well be right. Unfortunately it does not know whether it is right or not.

This illustrates the challenge for employers seeking to justify age limits of any kind. To do so is likely to require clear and compelling evidence which, in many cases, may not exist and may not be readily obtainable.

The judgment is available here

Baker -v- National Air Traffic Services Limited ET 2203501/2007