In a recent decision, Commissioner of An Garda Síochana and Minister for Justice, Equality and Law Reform v Roland Boyle (EDA234), the Labour Court held that the maximum age of 35 years for recruitment to An Garda Síochána was unlawful and that the complainant had been discriminated against on the ground of age.

This was an appeal of an Equality Officer’s decision (DEC-E2020/003) in which the Officer upheld the complaint and awarded €12,700 in compensation to the complainant.

Under S.I. No. 470/2013 Garda Síochána (Admissions and Appointments) Regulations 2013, a person is eligible to apply as a trainee to An Garda Síochána if they are between 18 and 35 years of age. The Labour Court determined that this maximum age criterion for recruitment:

1. does not constitute a genuine and determining occupational requirement as provided for under section 37(2) of the Employment Equality Acts 1998 to 2015 (the “EEA”) and Art 4.1 of the Framework Directive; and,
2. is not objectively justified as provided for under section 34(5) of the EEA and Art 6.1 of the Framework Directive.

Section 34(5) of the EEA provides that it shall not constitute discrimination on the ground of age to set a maximum age of recruitment which takes account of: (a) any cost or period of time involved in training a recruit to a standard at which the recruit will be effective in that job and, (b) the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in that job. An Garda Síochána accepted that Mr Boyle had raised a prima facie case of discrimination on the ground of age. It submitted, however, that it was justified under section 34(5) in respect of the cost or time required to train a recruit and the need for a reasonable period of service prior to retirement.

Section 37(2) of the EEA provides that a difference in treatment on the basis of a characteristic related to a discriminatory ground (i.e. age) shall not constitute discrimination where: (a) the characteristic constitutes a genuine and determining occupational requirement and, (b) the objective is legitimate, and the requirement proportionate. An Garda Síochána submitted that the Garda age cap was justified under section 37(2) of the EEA on the basis that the high level of fitness required was a characteristic that was inevitably related to a particular age.

The Court applied the four-limb test as follows:

1. is there a legitimate objective;
2. is the characteristic at issue a genuine and determining occupational requirement;
3. is the characteristic related to age; and
4. is the requirement proportionate.

The Court noted that there was no evidence before it in respect of the fitness levels of the current membership of An Garda Síochána. The Court further noted that there was no evidence before it to indicate that Gardaí of a certain age: (a) could not carry out all of their duties, (b) were being assigned to lighter duties on medical grounds or (c) had higher levels of absences or injury, as compared to younger members of the force. Accordingly, the Court found that An Garda Síochána had failed to establish a correlation between the requirement for a high fitness level and the requirement to exclusively recruit under the age of 35 years.

While the characteristic at issue might be genuine (the higher level of fitness required of a role), the Court held that An Garda Síochána did not present evidence to establish that it is a determining occupational requirement. The Court stated: “the Respondent has failed to establish that the characteristic of possession of a high level of fitness is inevitably related to a particular age and not found in persons over that age”.

Furthermore, based on the evidence before it, the Court found that the age limit of 35 years was not appropriate or necessary having regard to the objective of training Garda recruits and the need for a reasonable period of time prior to retirement during which the recruit would be effective in the job.

Having determined that neither derogation applied in this case, the Court found that the age cap currently in place is discriminatory on the ground of age.

“the Respondent has failed to establish that the characteristic of possession of a high level of fitness is inevitably related to a particular age and not found in persons over that age”.

https://www.workplacerelations.ie/en/cases/2023/february/eda234.html