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Advocate General fails Discrimination 101

The First Commandment of discrimination law is that each person has a right to be judged on the basis of his or her individual attributes. Stereotyping is anathema. Young women, on average, may have higher labour turnover than young men, but that does not mean that it is right to assume that every young woman will be more prone to leave their job than every young man. And in Great Britain, ever since the Sex Discrimination Act 1975, any employer who makes a recruitment decision on the basis of such a generalisation would be acting unlawfully. The same prohibition applies to stereotypes relating to the other protected characteristics.

The language of the EU Directives and our own legislation is more or less the same and, until recently, there was no reason to think that the position under EU discrimination law was any different. Now, however, we have the Opinion of the Czech Advocate General, Michal Bobek, in Fries v Lufthansa CityLine GmbH (Case C-190/16).

This is a claim by a pilot who, after he turned age 65, was dismissed in accordance with a European Commission Regulation relating to civil aviation aircrew, which provides that no one aged 65 and over can act as a commercial air transport pilot. The pilot is challenging the age limit as being age discrimination. Because he is challenging the validity of an EU secondary law rule, he is relying on a provision of primary law: the prohibition of age discrimination in Article 21(1) of the Charter of Fundamental Rights of the European Union, rather than the parallel age discrimination provisions of the Framework Employment Equality Directive 2000/78.

The age limitation was defended on safety grounds. It was argued by the claimant, however, that health and capacity are by their nature personal and specific to each pilot. The presumption that physical capacities deteriorate with age cannot be applied generally to all individuals. Therefore, he contended, an individualised approach to their assessment should be taken, based on a system of medical checks as is currently applied in respect of younger pilots.

Advocate General Bobek rejects the argument that an individualised approach is necessary. He says that could be used universally for calling into question any generally applicable rule that involves age. He goes on to say: “However, general rules, as their name indicates, are created by a generalisation. They are justified as long as it can be maintained that, in general, they properly apply in a reasonable majority of cases. This of course also means that there might potentially be individual exceptions. This does not mean, however, that the general rule must be reconsidered and replaced by an individual, case-by-case assessment. If it did, there could be no general rules.”

Far from challenging stereotyping, therefore, Advocate General Bobek’s reasoning in Fries reifies it. It is directly at odds with preventing the mischief which age discrimination legislation is intended to address. The decision of the Court of Justice itself is expected on 5 July and it will be important to see whether the Court endorses the Advocate General’s approach.

The ECJ has since given its decision.

Michael Rubenstein’s conference 22 QCs on the hot employment law issues for 2017-8 will be held on 5 and 6 October. For further details, please see here.

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