This case involved four Assistant Referees (formerly known as ‘linesmen’) who were working in top flight domestic football. They were members of a ‘select group’ from which officials for Premier League, Championship and cup matches were selected by Professional Game Match Officials Ltd (“PGMO”).
PGMO operated a retirement age so that anyone reaching the age of 48 during a season would have their membership of the group revoked, but could apply to be kept on after 48. Mr Martin and three other Assistant Referees applied to stay on after 48, but their applications were rejected. They claimed unfair dismissal and direct age discrimination.
The Employment Tribunal held that the Claimants were not employees of PGMO and so their unfair dismissal claim failed.
In relation to the age discrimination claim, the Tribunal had to consider whether PGMO’s policy could be objectively justified. The Tribunal looked at the EU Framework Directive 2000/78 from which the UK age regulations were implemented. This sets out a non exhaustive list of legitimate aims which can potentially justify age discrimination. The Tribunal noted that each legitimate aim listed in the directive had a public policy ‘flavour’ to it. Also finding assistance in the Heyday case, the Tribunal decided that the purely private interests of an individual company were not sufficient to qualify as a legitimate aim. It held that a narrow approach should be adopted when considering what might be capable of amounting to a legitimate aim to justify direct age discrimination.
The Tribunal identified three potential aims for the age 48 limit, but only one met the social policy objective. This aim was creating a career route for match officials. The Tribunal noted the ECJ’s judgment in Petersen relating to ensuring the availability of career opportunities. PGMO’s primary aim – ensuring a high standard of match official – did not have any wider social policy objective, but was merely a genuine business aim.
The Tribunal then looked at proportionality and ruled that the retirement age of 48 was not a proportionate means of achieving the aim of ensuring a career progression opportunities. The aim could have been achieved by having fitness assessments which had no regard to age, and by having demotions to the lower groups for those that failed these (thus creating career opportunities through replacement).
Having regard to the fact that the Dutch authorities had abolished a similar age limit without difficulties, the Employment Tribunal found that PGMO’s retirement age could not be objectively justified. The Tribunal also noted that it had been shown that 48 was an appropriate age even if an age had been justified.
Although only a first instance Employment Tribunal decision, this case appears to show that when justifying direct age discrimination, the legitimate aim requires some sort of wider social or public policy objective.
Martin and others v Professional Game Match Officials Ltd ET/2802438/09.