Age bar of 36 for Air Traffic Controllers not justified

Updated March 2009

In Baker v National Air Traffic Services Limited, a tribunal found that a blanket ban on anyone aged 36 or over applying to become a trainee air traffic controller was direct age discrimination that could not be justified

Background
The Employment (Equality) Age Regulations 2006 (Age Regulations) make it unlawful to discriminate on the grounds of age. Regulation 7 makes it unlawful for the employer to discriminate against a person in the "arrangements" he makes for the purposes of determining to whom he should offer employment.

The Age Regulations are unusual, as they provide that both direct and indirect age discrimination can be objectively justified. The test is the same in either case: the discriminatory treatment or provision must be "a proportionate means of achieving a legitimate aim".

It is for the employer to establish justification.

Facts

National Air Traffic Services Limited (NATS) operated an age bar which precluded anyone aged 36 or over from becoming a trainee air traffic control officer (ATCO), even though the demand for qualified ATCOs always exceeded supply and only 3% of those applying eventually gained a position on a training course.

NATS considered that competency decreased with age.
When the Age Regulations were introduced, NATS decided to review the age limit and, pending its review, suspended the age bar in June 2006.

Research was undertaken with a view to justifying an age cut-off, and an external consultant was involved in the review.
Evidence was sought to support an anecdotal view that performance and safety were compromised with increased age and that older recruits were more prone to not obtaining or losing their validation than others. Evidence was also sought to support the view that older recruits were more likely to leave service earlier than younger recruits, making it more difficult to recover the cost of training them. The available studies either did not support the view that age was a negative factor, or else was equivocal. The studies showed that the impact of ageing "varies from person to person".

In January 2007, NATS instructed an external consultant to provide a report on the proposal to reintroduce an age bar of 36. The expert, while acknowledging that the evidence was equivocal, recommended an age limit of 40. NATS had concerns that setting the age limit at 40 would compromise safety and put pressure on the expert to revise her opinion, which she did in March 2007. Having carried out an assessment over several months, NATS reintroduced an age bar in April 2007, this time fixing the age bar at 36 or over.

The claim

Mr Baker applied to become a trainee ATCO in August 2007. His application was rejected as he was aged 50 at the time. He brought a claim of direct discrimination under the Age Regulations in respect of the age bar. NATS argued that the age bar was objectively justified and therefore not discriminatory.

For the purposes of the tribunal proceedings, NATS identified the following legitimate aims:
 

• To achieve a high success rate in training.
• To provide an adequate pool of ATCOs for the business.
• To secure a reasonable period of service post validation.
• To ensure that safety was not compromised.

Decision

The tribunal found that the age bar was discriminatory and was not justified.

In the tribunal's view NATS had not approached the issue of age with an open mind, but had been "driven by the need to rationalise a fixed intention to maintain an age bar." Its primary aim had been to "return to the status quo" of the age bar. The tribunal noted that "an aim to discriminate [is] rarely if ever capable of being a business need".

Although the tribunal was convinced that NATS's main aim (of maintaining the age bar) was discriminatory, it made the following findings in relation to its four stated aims (as referred above):

• The aims identified were legitimate aims.
• The means chosen to achieve these aims, namely an absolute age bar at 36 with no exceptions, was not proportionate.

The tribunal made the following observations:

• To achieve a high success rate in training - success could not be predicted by age; the age 36 rule simply excluded many individuals who could be successful.
• To provide an adequate pool of ATCOs for the business - the age 36 rule seemed to be a positive hindrance to achieving this aim and, given that those over 36 had qualified in the past, this was irrational.
• To secure a reasonable period of service post validation - the evidence did not suggest any link between age and length of service.
• Safety - there was no evidence to suggest that safety was compromised by older recruits. Safety was secured by proper training, appropriate testing and monitoring and anyone over the age of 36 would be subject to the same rigorous safety checks as others.

The tribunal noted a number of flaws with NATS' approach to its review, including that no particular consideration had been given to alternative ways of achieving any of NATS' stated aims, other than the age bar. In the tribunal's view, this showed that NATS had failed to strike a balance between the discriminatory effect and the needs of the business.

Comment

This case illustrates that:

• An employer cannot rely on a generalised assumption that performance declines with age.
• If there is evidence to suggest that age is a negative factor, it should be clear and unequivocal.
• An employer should be able to show a correlation between the means adopted (in this case, the age bar) and the achievement of its legitimate aims.
• When instructing experts, an employer should do so in a way which is neutral and open, rather than guiding the expert towards the conclusion it wishes to reach.
• An employer should thoroughly explore, with an open mind, other less discriminatory means of achieving its aims, rather than merely seeking evidence to justify its preferred approach.

NATS's main mistake was identifying at the outset that it simply wanted to maintain the status quo and there was a clear paper trail to this effect. Potentially NATS's best argument was the need for a reasonable return for a period of training, but it failed to carry out a proper analysis of the financial and other considerations.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2009. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.