Employment Briefing - February 2010

Originally published February 2010

FEBRUARY 2010 CASES

You will notice that this Employment Briefing is longer than usual. There have been a significant number of interesting employment cases recently, so we have included them in this edition: which we hope will be useful.

Age Discrimination: ECJ Rulings

The ECJ has made two rulings in relation to individuals claiming age discrimination in two German cases.

In Wolf v Stadt Frankfurt am Main the ECJ considered a claim from an applicant to join the operational division of the professional fire services. Under Hesse law, recruitment to career posts in the fire division is open to persons of not more than 30 years of age. Mr Wolf brought a claim seeking compensation when he was told his application could not be considered because he was older than 30. The German court stayed proceedings to refer questions to the ECJ. In particular, it asked whether aims such as the concern to ensure a long career for officials or to ensure a minimum period of service before retirement are legitimate aims and whether setting the maximum recruitment age at 30 is an appropriate and necessary means of achieving such aims.

The German Government argued that operational careers in the fire service require exceptionally high physical skills which only younger officials could meet. It argued that in view of the 'medically proven ageing process' officials over the age of 45 no longer possess those greater physical abilities. The ECJ held that the concern to ensure the operational capacity and proper functioning of the professional fire services was a legitimate objective within the Equal Treatment General Framework Directive (the Directive). It followed that the possession of exceptionally high physical capacities may be regarded as a genuine occupational requirement. Noting the scientific data produced by the German Government, the ECJ accepted that the need to possess full physical capacity is related to the age of persons in the fire service. Finally, the ECJ found that the national legislation restricting the recruitment age to 30 was appropriate to the objective of ensuring the operational capacity and proper functioning of the fire service and did not go beyond what was necessary to achieve that objective.

In Petersen v Berungsausschuss fur Zahnarzte fur den Bezirk Westfalen-Lippe the ECJ considered whether German law setting a maximum age of 68 for health service dentists breached the Directive. Around 90% of patients were covered by that scheme.

In this case, Ms Petersen was a health service 'panel' dentist who reached the age of 68 in 2007. She complained that the requirement to retire at 68 was contrary to the Directive. The domestic court asked the ECJ to rule on whether the statutory regulation of a maximum age limit to practise a profession (in this case, dentistry) was an objective and reasonable measure to protect a legitimate aim (in this case, the health of national health patients) and an appropriate and necessary means of achieving that aim if it is derived solely from an assumption, based on 'general experience', that a general drop in performance occurs from a certain age. The domestic court mentioned several objectives: the protection of patients' health; the distribution of employment opportunities among the generations; and the financial balance of the German health system.

The ECJ held that the latter two aims were potentially legitimate aims. With regard to the first aim, the retirement rule could not be considered proportionate since it only applied to dentists in the health service, not private dentists. However the ECJ did think that the age limit was capable of justification as a means of ensuring the health system remained financially viable.

It is interesting that in both cases the ECJ in principle accepted that a decline in performance linked to increased age could justify rules which were age discriminatory.

Use of Protection from Harassment Act in Employment Case

In Veakins v Keir Islington Ltd an employee was successfully able to pursue a claim under the Protection from Harassment Act 1997 (Harassment Act) in relation to matters which arose at work. The Court of Appeal gave useful guidance in this case as to when a claim under the Harassment Act might be appropriate.

Miss Veakins had been subjected to a course of consistent bullying behaviour from her superior, Mrs Lavy, which included embarrassing public telling-offs, petty disputes and the ripping up of a letter of complaint written by Miss Veakins. Mrs Lavy had also persistently asked other employees questions about Miss Veakins' private life.

Miss Veakins brought a claim under s1(1) of the Harassment Act which provides that a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment. This prohibition is enforceable by a criminal offence and a civil remedy. The Recorder dismissed Miss Veakins's claim noting the criminal sanction under the Act and stating 'I cannot see that any sensible prosecuting authority would pursue these allegations criminally.[...] These extremely regrettable episodes, though made out factually, do not come anywhere near the line of criminality [to] bring them within section 1 of the Harassment Act'.

The Court of Appeal disagreed. It stated that since the case of Majrowski, courts have been enjoined to consider whether the conduct complained of is 'oppressive and unacceptable' and asked 'if the Recorder had considered the evidence by reference to the test of 'oppressive and unacceptable' would he inevitably have come to the same conclusion[...]?.... The Court found that he would not and that the...