Landmark case outlaws “irrational” over 35 age limit
A ban on air traffic control recruits older than 35 has been declared unlawful, in a groundbreaking age discrimination case.
In Baker v National Air Traffic Services Ltd, the London Central Employment Tribunal ruled National Air Traffic Service’s (NATS) age bar was unlawful and contravened the Employment Equality (Age) Regulations 2006.
The applicant, Mr Baker, had a private pilot’s licence and had completed the theoretical stages necessary to become a commercial pilot. He applied to NATS in 2007, a few weeks after his 50th birthday, but his application was automatically rejected because of his age.
NATS, which is partly state owned and has exclusive rights to provide services to a large part of the UK’s air space, argued its policy was based on safety concerns, citing a decline in performance among older controllers. It also highlighted the need to recoup the cost of training, about £600,000.
However, the tribunal found that NATS’ age limit was based on “irrational” views within the organisation that there were “difficulties” with older recruits.
The tribunal said NATS had successfully recruited older trainees and was willing to recruit controllers over the age of 35 who had trained elsewhere.
Baker’s lawyers—Baker & McKenzie LLP, Robin Allen QC of Cloisters and Yvette Budé of Devereux Chambers—acted pro bono.
Declan O’Dempsey, discrimination specialist at Cloisters, says: “NATS could not justify the age bar they were using.
“Not only did it fail to support NATS’ aims, it was positively undermining them. The evidence showed that demand for controllers consistently outstrips supply in the UK and the belief that cognitive ability starts to decline after the age of 35 was based on muddled thinking. Once again common beliefs about age and declining ability are being challenged in this judgment.
“As people live longer and healthier lives, employers must be very careful about making this kind of assumption. HR policies relating to an ageing workforce should be based on evidence and not assumption. Tribunals will come down hard on employers who can’t provide objective data to back up their decisions.”
