Even if there are objective reasons for setting an age limit for applicants, the employer must duly justify a direct distinction. The Brussels Labour Court, in a judgment of 28 November 2019, carried out a meticulous justification test and ruled that an age limit of 25 for the recruitment of air traffic controllers constitutes discrimination.
The case concerned the establishment of an age limit of 25 years for participation in the recruitment exam to become an air traffic controller for Skeyes (the Belgian air traffic control service). Such an age limit constitutes a direct distinction, which can only be justified by a genuine and determining occupational requirement (Article 8 of the Discrimination Act). Moreover, the requirement must be based on a legitimate objective and be proportionate to it. The employer states that such an occupational requirement exists, in particular the importance of a sufficient situational awareness for air traffic controllers. According to the employer, the low age limit is necessary in view of the undeniable link between ageing and the decline in cognitive spatial skills, which poses a safety risk to air traffic.
In addition to the main legitimate objective of air traffic safety, the employer gives three sub-objectives: firstly, to maximise the chances of success of prospective air traffic controllers in training, so as to ensure continuity in the number of air traffic controllers; secondly, to ensure that each air traffic controller gains sufficient experience to remain able to perform his or her duties safely during his or her later career; and thirdly, to ensure staffing requirements through the transfer of experienced air traffic controllers to more complex positions.
The Labour Court accepted these objectives as legitimate, but questioned the proportionality of the low age limit of 25 years in light of these objectives. Firstly, studies and data do not unequivocally show that young candidates would have a higher success rate. Secondly, the employer assumed that the ability to concentrate decreases from the age of 35, whereas, according to most studies, this actually only happens from the age range of 40-50. The premise that one should start at the age of 25 in order to build up sufficient experience (minimum 10 years) to compensate for a reduced ability to concentrate is therefore wrong. Thirdly, according to the same reasoning, it is also possible to guarantee the progression to higher positions with a higher age limit at recruitment. The 25-year limit is thus disproportionate to the legitimate objective.
Furthermore, the employer also tried to justify the direct distinction on the basis of legitimate social policy objectives (art. 12 Discrimination Act): a high quality level of air traffic control, preventing disputes about the suitability of an aspirant, maximising the chances of success, ensuring sufficient experience to perform the job in a safe manner at a later age, and ensuring staffing needs. This justification was also rejected by the labour court, as these objectives are either purely dictated by the self-interest of the company, or because the employer did not demonstrate that the age limit of 25 years was necessary for this purpose.
According to the Labour Court, the age limit of 25 years constitutes discrimination on grounds of age. Incidentally, the judgement also suggests that a higher age limit of e.g. 30 would be more likely to pass the justification test.