EDA234

1.Appeal Of Equality Officers Decision DEC-E/2020/003

BACKGROUND:

2.The Employer appealed the Decision of the Equality Officer to the Labour Court on 12 November 2020. The following is the Court's Determination:





DETERMINATION:

This is an appeal of Equality Officers Decision DEC-E2020/003 under the Employment Equality Acts 1998 to 2015 by the Respondent. The complaint was lodged with the Equality Tribunal as it was then, on 25^thApril 2006. The Equality Officer upheld the complaint of discrimination on the grounds of age and awarded compensation of €12,700. An appeal of that decision was received by the Labour Court on the 12^thNovember 2020. A case management hearing was held on the 17^thFebruary 2022 and the hearing of the case took place on the 27^thand 28^thJune 2022 and the 27th and 28^thOctober 2022. At the case management hearing it was agreed that this case and the case of Brian Fitzpatrick ADE/20/116 would be heard together.

Summary of Complainant’s submission and evidence.

Ms Barrington SC informed the Court that that the Complainant originally applied for a position in An Garda Siochana when he was 25 years of age. On that occasion he failed the medical examination because of the height requirement which was in place at that time, and which was subsequently abolished. Following the removal of the height restriction the Complainant in 2005 submitted a further application at which time he had attained the age of 44 years. His application was not processed as he was advised by Public Appointments Service (PAS) that he did not meet the eligibility requirements in terms of age.

Ms Barrington SC opened S.I.No.164/1998 Garda Siochana (Admissions and Appointments) Regulation, 1988. That regulation set out the original requirements in respect of age, height, and other such matters. These Regulations were amended in 2001 in terms of removing the height restriction. The Regulations also set out the process to be followed in terms of interview, medical examination, training and related matters. The 2001 regulation changed the height restriction and was more or less the same as the 1998 regulation other than it introduced a physical competence test. A new regulation 16 was introduced, which provides that the Commissioner can dispense at any time with the services of a member on probation if he considers that the member is not suited either physically or mentally for the role.

The next relevant regulations opened to the Court were the 2004 Regulations. Regulation 3 amends the age cap by substituting age 35 for age 26. In 2013 there was an overhauling of the regulations to what they are now. Regulation 6 provides

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  “A person is eligible to apply for admission as a trainee where on the closing date specified in the advertisement.
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    (a)The person has attained 18 years of age but has not yet attained 35 years of age”

The Court was taken through the Regulations that apply to Garda Reserves and their attention was drawn to the different age requirement. For Garda reserves the requirement is that the person is not less than 18 years of age and under 60 years of age. The Regulations also set out the duties that members of the Garda Reserve can be assigned to.

Ms Barrington SC submitted that what the Court has to determine is whether the cap, as put in place by the 1998 regulations and amended by the 2004 regulations to age 35 is unlawful age discrimination breaching the provisions of the framework directive as transposed into Irish law by the 1998 Act.

Ms Barrington opened Council Directive 2008 framework directive to the Court and brought the Court to recital 18 which states; “This directive does not require in particular armed forces and the police, prison or emergency services to recruit to maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services”which she submitted the Respondent are seeking to rely on. It was her submission that the Respondent is seeking to rely on the fact that the age cap meets a legitimate objective.

Recital 25 refers to the prohibition of age discrimination as being an essential part of meeting the aims set out in the employment guidelines and encouraging diversity. It states in the last sentence “Itis therefore essential to distinguish between differences in treatment which are justified in particular by legitimate employment policy, labour market and vocational training objectives and discrimination which must be prohibited”.It was submitted that this is the test that the Court needs to apply to the age cap that is currently in place.

Article 4 is a fundamental article for the purpose of this hearing as it addresses occupational requirements and states “Notwithstanding Article 2.1 and 2 Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where by reason of the nature of the particular occupational activities concerned or the context in which they are carried out, such characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”

Ms Barrington submitted that this is where the test that the Court must apply flows from. Article 6 addresses the justification of differences of treatment on grounds of age and states that:

“Member States may provide that differences of treatment on grounds of age shall not constitute discrimination if they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy et cetera if the means of achieving that aim are appropriate and necessary”.

There is particular reference at Article 6 (1) (c) to the possible difference of treatment being the fixing a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

Having traversed the relevant European legislation Ms Barrington set out the relevant provisions in the Acts and drew the Courts attention to in particular Section 37 (4) which provides that:

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  “(a) if the Minister is of the opinion that the age profile of members of An Garda Siochana is such that its operational capacity is or is likely to be adversely affected and;

  (b)He by order so declares the age ground shall not apply in relation to some competitions for improvement.”

The cases ofColin Wolf v Stadt Frankfurt am Main Case C-229/08, Mario Vital Perez v Ayuntamiento de Oviedo Case C-416/13 and Gorka Salaberria Sorondo v Academia Vasca de Policia y Emergencias Case C-258/15, are a trio of cases where the test as articulated by the CJEU was applied. In particular it was elaborated on in the Wolf case which sets out the four limbs of the test as follows.

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  i) Is there a legitimate objective

  ii) Is the characteristic at issue a genuine and determining occupational requirement

  iii) Is the characteristic related to age

  iv) Is the requirement proportionate

The second limb is whether or not requiring the possession of a high level of physical capacity is a genuine and determining occupational requirement. Ms Barrington SC confirmed that they accept that the possession of a high level of fitness could be a genuine occupational requirement. However, as the Respondent does not measure same once a Garda has passed their probation, it is difficult to see how they can assert that it is.

The third limb of the test is related to age. The characteristic is a requirement for a high level of physical fitness. The Court will hear medical experts from both sides on this issue. The Respondents will submit that ageing has detrimental effects on physical fitness and that you necessarily lose certain physical prowess and fitness as you age. Ms Barrington SC stated that the Complainants do not accept that you cannot fight chronological ageing. The assumption that nobody over the age of 35 can have the level of fitness required is a broad generalisation and a blunt instrument. There is insufficient data to support this generalisation.

The final limb of the test is that the requirement be proportionate. It is the Complainant’s submission that an age cap of 35 is not proportionate. While the Respondent’s position is that there is no more proportionate or less restrictive measure. The Complainant does not accept this.

Ms Barrington SC opened to the Court a 2005 European Commission document “Age discrimination and European Law” and brought the Court to the section headedLimitations and Derogationsand the following paragraph “In respect of the issue of justification, member states would be advised to give real consideration and appropriate guidance as to when age discrimination can be justifiable, whether on the basis that it constitutes a genuine occupational qualification, direct discrimination or indirect discrimination. It is difficult to see many circumstances where such a blunt and general characteristic such as age would be required as a genuine occupational requirement. However, an important issue arises as to when it will be possible to use age as a proxy for another quality or characteristic that is a general occupational characteristic for a particular job, or else when the use of age as a proxy in this way to differentiate between individuals will satisfy the objective justification test. The use of age as a proxy for characteristics such as incapacity, ill-health or immaturity will often be highly questionable” the use of general age limits where individual assessment is possible will also be very problematic. Even well recognised legitimate aims such as those set out as examples in Article 6 can’t justify the use of age limits that are not linked to a clear justification which could be replaced with less restrictive methods of achieving the legitimate aim in question.”

Ms Barrington SC stated that the Respondents are saying age is a proxy for fitness and they need fitness. The use of age as a proxy for fitness is not appropriate. Age as a genuine occupational requirement is not a predictive indicator of fitness. Exceptions under European law under the framework directive are to be strictly construed and it is for the Respondent to prove that they are not operating an overly broad generalised and particularly blunt tool. The reality of the situation is that no one knows how fit or unfit An Garda Siochana as a force are and in particular how they compare as against the fitness level of applicants aged over 35.

Ms Barrington SC submitted that the Respondents have failed to establish that the imposition of a maximum age of recruitment of 35 constitutes a genuine occupational requirement and cannot therefore rely on the derogation set out in Article 4 (1) of the Directive reflected at s 37(2) of the Act. Nor have they discharged the proof required to rely on the derogation at Article 6(1) (c ) reflected at s34 (5) of the Act.

In order to rely on the Article 4 derogation, the limitation must be a genuine occupational requirement in other words having an age cap of 35 must be linked to a legitimate objective. The Respondent claims that the legitimate objective is that of ensuring the operational capacity and proper functioning of An Garda Siochana. The Respondent sets out a number of factors in support of this contention in particular, physical capacity, unitary nature of the force and lack of mutual aid which they submit underpin the requirement that members need to have the physical capacity to carry out a wide range of functions. However, the evidence before the Court is that there is no data on the fitness levels of members of An Garda Siochana either as a group or on an individual level. The Commissioner in his evidence to the Court confirmed that he is assuming that members maintain their fitness and is relying on the fact that the force is carrying out its functions to support that assumption.

Ms Barrington submitted that if An Garda Siochana does not take steps to ensure or even determine the physical capacity of its members, then physical capacity cannot be a credible factor in ensuring its operational capacity and proper functioning. In respect of the Respondents submissions around a sufficient pool of staff to compete for promotions and the flat structure in An Garda Siochana, the Court was informed that there are approximately 14,300 members of An Garda Siochana of whom approximately 11, 600 will remain at ordinary garda rank for their entire career. The evidence before the Court was that the last competitions for positions in the Armed Support Unit (ASU) and Emergency Response Unit (ERU) were heavily subscribed with 500 applicants for 19 posts. More importantly the issue of being able to select internally from sufficiently experienced candidates is not in any way related to any identified characteristic related to age. The final issues under this heading raised by the Respondents relate to pension entitlements which are not a genuine occupational requirement, as required to come within the derogation at Article 4(1).

The second limb of the test identified earlier is that the characteristic required must constitute a genuine and determining occupational requirement for the occupational activities in question. However, in circumstances where the Commissioner’s evidence is that the physical capacity of serving staff is not tested or known and there is no working definition of “high level of physical capacity” it is difficult to see how possession of a high level of physical capacity can actually be, a genuine and occupational requirement for members of An Garda Siochana. Ms Barrington SC submitted that the Respondent had failed to identify a correlation between the need to be of a certain level of fitness and the ability to do the job of a member of An Garda Siochana.

The third limb requires that the characteristic in question must relate to age. All the experts who gave evidence to the Court agreed that the effects of ageing can be delayed by engaging in physical exercise and by lifestyle change. They also accepted that if physical fitness is important then there should be regular fitness testing. The Respondent appears to be of the view that removing the age cap would result in an increase in requests for light duties but no evidence was proffered to support this contention. The evidence before the Court was that out of 14,300 members, 613 members were on light duties. The Respondent was unable to provide a breakdown of this number in terms of age or nature of the illness.

The fourth limb is that the requirement must be proportionate to meet the legitimate objective relied on. Ms Barrington SC submitted that in circumstances where the Respondent does not know the physical capacity of its members, have no data to show that high levels of physical capacity are maintained by members throughout their career, that they can have no evidence or data to conclude that the age cap is an effective way of achieving their legitimate objective or ensuring operational capacity and the proper functioning of the force.

It is the Complainant’s submission that one effective way of ensuring a high level of physical capacity would be through post attestation fitness testing. However, the Respondent states that the financial and industrial relations cost of doing that would be prohibitive. In terms of the costing put before the Court it was accepted by Ms Staunton that the figures, she prepared were a worst-case scenario which would assume every guard would have to be replaced by giving overtime to another guard for a full twelve-hour shift despite the fact that not all guards work the 12-hour shift pattern. The evidence before the Court in terms of jurisdictions where post attestation fitness testing occurs is that the time involved ranges from a few minutes to an hour and a half and that the testing could be included as part of other ongoing training already provided. In those circumstances the costing presented to the Court cannot be relied on as being an accurate reflection of potential costs.

The fact that representative organisations might resist the introduction of fitness testing and or the fact the organisation does not currently have procedures in place to address issues that may arise if Gardai members fail the fitness test are not a basis for retaining the age cap. There is no automatic link between removing the cap and introducing fitness testing. The Court heard from two witnesses that in Northern Ireland and Sweden there is no post attestation fitness testing and nor is there a recruitment age cap.

The evidence before the Court was that the Respondent had no data in respect of the potential number of applicants that might apply if the age cap was lifted and that the Respondent had not carried out any research on the experience in other jurisdictions when the age cap was lifted. The document that the Respondent sought to rely on which purported to give the impact on the age profile if the cap was lifted up to the year 2037 was flawed, as it was based on inflated projections on the likely number of applicants joining over the age of 35. It is the Complainant’s submission that the use of a blunt measure such as an age cap to deal with fears about the number of successful applicants over 35 in circumstances where there is no evidence that such an eventuality will arise must be considered to be disproportionate. Even if such issues did arise, they could be addressed by the Minister invoking s.37 (4) of the Act. Recital 23 of the Directive confirms that it is only in very limited circumstances that different treatment may be justified on the basis of a genuine and determining occupational requirement.

In respect of the Article 6 derogation that the Respondent seeks to rely on this provision was transposed into national law by s.34(5) of the Act which only permits such differences in treatment on the age ground through the setting of a maximum age for recruitment which takes account of;

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  a) The cost or period of time involved in training a recruit to an effective standard

  b) the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in the job.

Summary of Respondent’s submission and evidence.

Mr Kerr SC on behalf of the Respondent stated that Ms Barrington SC had identified the relevant legislative provisions both at European and National level. He drew the Court’s attention to the document that Ms Barrington SC was quoting from and the caveat it contained from the Commission stating that the contents of the report do not necessarily reflect the opinion or the position of the European Commission Directive General for Employment, Social Affairs and equal opportunities.

The Complainant was over the age of 35 on the relevant date so his application did not get past the initial screening by PAS. No issue arose as to whether or not the Complainant satisfied the education or physical requirement. The Respondents are happy to concede that the Complainant has raised a prima facie case of discrimination on the grounds of age.

The issue of whether the imposition of an upper age limit is discriminatory on the grounds of age has been considered by the CJEU on a number of occasions. The Respondents will be relying heavily on the cases ofWolfandSerondo. In theWolfcase the maximum age for recruitment to the professional fire service was 30. In theSerondocase the provision in question was an upper age limit of 35 for recruitment of police officers in the Basque country.

Mr Kerr SC indicated that the Respondents accept the four limbs are as set out by Ms Barrington SC. In respect of the first limb the legitimate aim of having an upper age limit is to ensure the ongoing and proper functioning of An Garda Siochana. He indicated that the Respondent was happy to note that the Complainant is accepting that the role requires a high level of physical ability.

The Respondent’s medical experts in dealing with the third limb will confirm that age is a characteristic of a high level of physical ability. It is the Respondent’s position that the characteristic of possessing a high level of physical capacity is a characteristic related to age, particularly given the physically demanding tasks which Garda members must undertake whilst on duty. All four experts appear to agree that a person’s physiological functions deteriorates as you get older but that in individual cases it can be delayed by lifestyle choices.

The fourth limb is that it must be proportionate, it is the Respondent’s position that there is no alternative. Evidence will be given that post attestation fitness testing will amount to a significant imposition in terms of finance, logistics and Industrial Relations consideration.

It is the Respondent’s case that the maximum age of 35 years for recruitment to An Garda Siochana constitutes a genuine and occupational requirement within the meaning of section 37 (2) of the Act and Article 4 (1) of the Framework directive and is in line with the four-part test set out in case-law. Ireland has a single unified police force which provides policing and security services to the State with the following objectives.

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  i) Preserving peace and public order

  ii) Protecting life and property

  iii) Vindicating the human rights of each individual

  iv) Protecting the security of the State

  v) Preventing crime

  vi) Bringing criminals to justice, including detecting and investigating crime and

  vii) Regulating and controlling road traffic and improving road safety.

Arising from the civilianisation programme the majority of administrative roles are not carried out by Gardai so there are no less physical roles that someone could be assigned to. There is limited capacity to facilitate light duties where this is recommended by the CMO. The nature of An Garda Siochana is that many members are required to patrol alone as opposed to the practise in other police forces of “double cabbing”. The Chief Medical Officer (CMO) Dr Oghubvu indicated in his evidence certain illnesses that are more likely to be present among a cohort of people as that cohort increases in age and that age is of particular importance for Musculo-skeletal strength. The Court also heard evidence of the physical and mental stamina required by tours of duty of 10 and or 12 hours duration.

Professor Kenny in her evidence discussed the impact of sleep deprivation and shift working and that the ability to adjust to shift work declines with age. It is the Respondent’s submission that having regard to the extensive duties of An Garda Siochana that the mental and physical capabilities required of its members are more analogous to those required of the Basque Police force which was the subject of theSorondocase than to the local police force which was the subject of theVital Perezjudgment.

The imposition of a physical fitness examination for serving members of the force would impose a disproportionate cost on the organisation and would also be challenging on the Industrial relations front. There is a significant investment in training recruits who complete a special bachelor’s degree programme over a two-year period, and it is important for public policy and finance reasons that individuals once admitted should in the normal course of events be able to complete a substantial period of service within the force. It is the Respondents submissions that for all the reasons set out and based on the evidence adduced the maximum age limit of 35 years for admission to An Garda Siochana is justified under section 37(2) of the Act and Article 4 (1) of the Framework Directive.

It is further submitted that a maximum age limit of 35 years is also permitted by the terms of section 34(5) of the Act and article 6 (1) of the Framework Directive. The CJEU held in Vital Perez that the training requirements of the police force and the need for a reasonable period of employment before retirement “are capable of justifying a difference in treatment on grounds of age ‘objectively and reasonably’ and ‘within the context of national law as provided for in Article (6) (1)”. It is the Respondent’s submission that the means chosen for achieving those objectives is appropriate and goes no further than is necessary.

In relation to the Court’s query in respect of section 37 (4) it is the Respondent’s position that the 35-age limit is justified by the overwhelming evidence that it has adduced and therefore section 37 (4) is irrelevant and cannot be relied on for concluding that the age limit is not justified. The section is clearly envisaged as providing emergency power to protect the operational capacity of An Garda if a problem develops or is likely to develop. It makes no sense to allow the problem to develop and then for the Minister to exercise the power. It is the Respondent’s submission that the evidence adduced before the Labour Court has established that the maximum age limit for admission to An Garda Siochana is justified both under Section 37 (2) of the Act and Article 4 (1) of the Framework directive on the one hand and under Section 34 (5) of the Act and Article 6 (1) of the Framework directive on the other hand.

Summary of Complainant’s witness’s evidence

Professor Niall Moyna.

Professor Moyna informed the Court that he is a Professor of Clinical Exercise Physiology in Dublin City University. He stated that he would draw a distinction between primary biological ageing and secondary ageing. Primary ageing is natural ageing without the impact of lifestyle. Secondary ageing, lifestyle can impact on it, and it can be ameliorated by fitness. In his opinion, the fitness level currently required for An Garda Siochana is not exceptional and not very high. Because of the nature of the job, it would in his view, be important that they maintain fitness. Having an annual fitness regime would encourage that.

Professor Moyna gave details about fitness testing introduced for GAA referees and how that was done and impact of same. He stated that if the cost of implementing post attestation fitness testing is €2.9 million then it is less than 1% of the budget of 14 Universities around the country, where the testing could be done.

Professor Moyna stated that if a person at 40 / 45 is fit enough to pass the fitness test, the likelihood is that they will maintain fitness if they continue with the same lifestyle. In respect of the argument that the age cap is required as a result of the physical capacity needs within the Garda, in his opinion by having an age cap, you are disenfranchising people who are physically active and who can contribute to An Gardai.

It was put to Dr Moyna under cross examination that the cap was required, and that he seemed to be suggesting that the absence of data around the fitness level of post probation Gardai was what was preventing the lifting of the cap. However, the Commissioners evidence is quite clear that is not the reason.

Dr Moyna responded that it was his position that if you are physically active, you can maintain a high physical capacity without being a world class athlete or a master, so he did not believe there was a need for an age cap.

It was put to Dr Moyna that An Garda Siochana currently have a surrogate to a fitness test in the fact that the majority of the members are at work carrying out their duties. Dr Moyna stated that he believed that if the person has the physical capacity and can meet the fitness requirement for entry to An Garda Siochana, then they should be let apply for a position. In his opinion 35 is an arbitrary age limit as with physical activity you can maintain fitness if your lifestyle is good.

Dr Ally Thomas

Dr Thomas informed the Court that he is a former Senior ranking Police Officer in the UK and worked in that police force from 1981-2011. Prior to his retirement he was an Assistant Chief Constable in Kent police force. He set out the structure of policing in England and Wales and stated that each police force is independent and that there are a total of 43 police forces. Each of the 43 are unitary police forces with full responsibility for their own area. In terms of mutual aid within England and Wales if there is a large operational incident you can borrow resources from your neighbouring force, so you don’t strip out all your own force. Kent where he worked had a police force of approximately 4,000 members, they would have been called on to supply resources for G8 events and other regional events. Staff also went to Scotland and Northern Ireland. They as a police force would have received support from the metropolitan police force who were their nearest neighbours. In respect of an incident like the Salisbury poisoning or Lockerby crash he submitted that Ireland would need specialists from other countries, and they would be able to call on them.

In the UK before the age limit was abolished the age cap was 35 this was lifted in 2003. Some other restrictions around height, body mass etc were lifted in the late 90’s. The requirement for post attestation fitness testing was not introduced until 2012. It was his evidence that after the age cap was lifted that the effect was so insignificant that nobody noticed it. In his experience applicants over 35 came from other jobs such as army and carried previous service with them. It was his experience that older recruits add an additional dimension to the service. Younger people tend to have limited life experience when they join and are more susceptible to what he described as “Canteen culture” rather than thinking for themselves.

It was put to Dr Thomas that the Commissioner’s view is that you need young recruits. Dr Thomas stated that he did not necessarily agree with that as he felt older candidates brought life experience with them which was a benefit to the organisation. In his experience the numbers of over 35’s applying for positions tends to be low. In terms of absence rates, it is his experience that the highest rate of absences is among people in the age group 25 -40.

Dr Thomas stated that in the UK they had informal post attestation fitness testing for six years before it became mandatory. The training now forms part of the Officers safety training which already existed so there was no additional cost. In terms of the justification of the age cap on fitness grounds he stated that, it is his belief that a person who maintains a level of fitness at age 40 is more likely to retain it into later life than someone who was fit at age 21. The UK post attestation test is a basic test of aerobic fitness and the standard required is not high. Where people fail the test, they can repeat it. He did not consider that shift patterns would be more of an issue for the older recruit and commented that older recruits bring with them life experience.

In response to a question put to him as to what a 40-year-old brings to an organisation that a 35-year-old cannot. Dr Thomas stated that he was making the point that the older you are the more life experience you have. The lifting of the age cap in the UK was not because of recruitment shortages. In terms of a return on the training investment it was his evidence that it takes 3 to 5 years to get a return.

In the UK the fitness test is not age or gender related if you are permanently incapacitated and cannot pass the test there is provision for an administrative dismissal. However, to the best of his knowledge this has never happened. While there is no age cap in the UK in reality you cannot recruit after 56 as there is mandatory retirement at 60 and you have to get a return on the money invested in training the recruit. He accepted that by default this was an upper age cap.

Mr Kerr SC put it to Dr Thomas that if the average age of the police force rose to 55 as it did in the Basque case that could cause a problem. Dr Thomas stated that the Basque police was an unusual case in that in a period of four years they recruited the whole police force, so they all aged at the same time. Their pension is calculated on age of retirement so even if you only worked for five years you still got a full pension unlike in other police forces. He accepted that as people age their physical capacity declines but stated that people can stay fit depending on their lifestyle.

Mr Marku Nyman

Mr Nyman informed the Court that he worked for 11 years with the Finnish Policeforce and that he was involved in work relating to the selection and assessment of all groups. Their age cap was lifted in 2005, they have a force of 7,400 and a population of 5.5 million. They have the lowest rate of police officer to population ratio. All members of the police force get the same training as they all carry guns.

In terms of applicants 7/8 % of accepted applicants in the last competition to fill positions in the Finnish police force, were 35 years or older. It was his belief that having people from different age groups brings more diversity to the police force. In Finland there is ongoing physical fitness testing, which has always been in place. It is considered a very important part of the system. All members of the force are tested every 2^ndor 3^rdyear. They are expected to perform better in the test than the average person in the general population. The test generally takes 1.5 hours. Light duties are only available if a member of the force has an injury. Mr Nyman was not aware of any issues around operational capacity arising from the lifting of the age cap.

In response to a question from Mr Kerr SC Mr Nyman stated that he was not aware of recruitment issues during his time but is aware that more recently there has been a decline in applications. In Finland while it is not compulsory most people do some military service, most of the over 35 males who joined the force, will have done one year military service.

Every year all members do firearm training and if you do not pass you are given another attempt. The age cap in the 1970’s was 26 then went up to 35. The age cap was 35 when it was abolished. It was abolished to increase diversity and enhance opportunities. The rate of female applicants is in the range of 35-45% and the average age of the police force including civilian staff is 43.6. If you strip out the civilian staff, it is lower.

Fitness testing has been part of the system since at least 2002 it was introduced before the age cap was lifted. To the best of his knowledge nobody has been dismissed for failing the fitness test. Members of the police force get two paid hours a week to go to the gym. The fitness testing is calibrated for gender but not for age. Police Officers retire at 68 but if you joined before 1989 you can retire at 58.

Dr Stephen Annell

Dr Annell informed the Court that he is not a police officer but a psychologist working with the Swedish police in recruitment since 2003. Originally in Sweden the age cap was 20 to 40 but in 2008 the cap was lowered to 18 and the upper age cap was removed. Currently there is no upper age limit. In the last competition 8% of successful candidates that started their Police education were over 35. The retirement age in the Swedish police force is 68. They actively recruit older people. In the Swedish police force the age of the applicant is not a real issue. Dr Annell submitted that he believed that age was a blunt proxy. If fitness and or physical ability is an issue a running test is a better predictor of aerobic capacity. There is no ongoing fitness testing in the Swedish Police force. Members of the force are entitled to a health promotion hour a week and an annual contribution of €500 euro to pay for other fitness activities in their own time.

In respect of light duties, it was his submission that modern police work is very diverse, and you need a lot of people with different skills. The police force should be representative of the population as they are one of the most trusted bodies in the country. In terms of the lifting of the age cap it has had more positive than negative impacts. Dr Annell stated that there are similarities between the police force in Sweden and Ireland. He accepted that there are differences but stated that in his opinion they are essentially the same.

In 2008 they had 7,600 applications for entrance to the police force. A total of 823 applicants were successful and within that cohort 6% were in the age range of 35-39 the mean age at that time was 26.5. In 2021, they had 16,000 online applications of that number 1,650 were successful and 8% were in the 35-39 age group and 8% were older than 39. The mean age at that point was 27.4 so the lifting of the age cap had only a nominal impact on the mean age.

Dr Annell confirmed that in 2015 they started having trouble with recruitment, before that it was not an issue. While there can be a cost to opening up the competition to attract a wider range of applicants, he believed that there are also benefits.

In the Swedish police force the application physical test is weighed for gender. However, once you get into the force, there is no further testing. Their pension scheme is very different to Ireland, but he does not believe that pension is a reason to discriminate. The Swedish Police force have a roster system, 40 hours if you workdays or 32 hours if you work nights. Everyone has to work some nights and some weekends.

Dr Annell accepted that it could be up to a 10-year return in terms of the investment on training new recruits. He stated that while there is no upper age cap if you were 70 and you applied you probably would not get an interview because their education process lasts 2.5 years, and their retirement age is 68.

Mr Boyle Complainant

Mr Boyle gave the background to his application to become a Garda. He stated that he made his initial application when he was 18 then a further application again when he was 25 and, on that occasion, he got as far as the medical, but he did not meet the height restriction which at that time was 5’9. This restriction was removed in 2001 and he applied for a third time in 2005. At that time, he was 48, he was aware that the age limit was 35 but he applied online. When PAS informed him that his application would not be processed, he then engaged in the correspondence that was opened to the Court at the start of the hearing. It is his evidence that he was then and still is physically fit and that one of his jobs is as a swimming instructor. He believes he would have passed the physical fitness requirement and that he was discriminated on the grounds of age contrary to the Act and the Directive. It was a lifelong ambition to be a garda and he was aware that he would only get a reduced pension, but that fact did not bother him.

Summary of Respondent’s witness’s evidence

Commissioner Drew Harris

Commissioner Drew Harris gave a summary of his career to date, the different positions that he held and what the roles entailed. It was his evidence that he believed that an age cap of 35 for An Garda Siochana is essential. Ireland is unique in European policing as it is a unitary police service which includes responsibility for national security, counter terrorism and major crime investigation. The service is required 24/7, 365 days of the year and includes national and international responsibilities. The service has a number of specialist units such as a national canine unit, economic crime unit, drugs unit, emergency response unit and armed support unit.

In order to deliver this service and to staff these units the service requires staff of great competence and capabilities in diverse roles. They need a wide pool of staff that they can draw from to staff these specialist units. Specialist roles require experience and fitness, but even standard roles are onerous. Having a cap of age 35 with a mandatory retirement age of 60 gives the prospect of a minimum of 25 years’ service and the potential for the person to achieve nearly full pension as 30 years is required for full pension. The first 20 years for pension purposes accrue in the normal way but the next 10 years accrue at a rate of two for one. Anyone joining the service after the age of 40 would not benefit from the fast accrual part of the pension scheme. The Commissioner stated that he felt that Garda members build up experience and competence over a number of years, which enables them to take on many roles throughout their careers even if they don’t move into a specialist field. The service also benefits from having staff with many years of experience.

Commissioner Harris stated that the demand on the service means more areas of the service are moving to 12-hour shifts on a 24/7 basis. These are onerous shifts as staff sometimes have to work beyond the 12 hours and the service needs staff that have the endurance for these types of shifts. The shifts are two nights on, two days on then rostered off for four days. That is the shift pattern most Gardai have to work. This particular shift pattern was introduced to meet the demands of Covid. On a normal patrol it is impossible to predict what a Garda will encounter; tours of duty now are more challenging than they were years ago because of alcohol and drugs.

The Commissioner set out for the Court the structure of An Garda Siochana and the number of members at the various levels. He informed the Court that the detective structure mirrors the Garda structure and specialist units are drawn from both streams. The majority of officers are at the rank of Garda. There is no automatic move from Garda to Sergeant, applicants have to go through a selection process. Garda have seven key areas that they work in. Counsel took the Commissioner through the job profile of a guard which set out the tasks and job functions. The Commissioner high lighted a number of the functions which he indicated would require a high level of physical ability and physical agility. Members require the stamina to be as alert at the end of the shift as they are at the start of the shift.

It was the Commissioners evidence that while they do not have a physical fitness programme per se the organisation promotes participation in fitness and sports, and they have a system of duty credits in place that allow Gardai take part in events which supports them in maintaining their fitness.

In respect of the Garda Reserve recruitment can be up to the age of 60. The retirement age of 65 is set out in the Regulations. The Garda reserves are volunteers who give up their time. The requirement is for 200 hours a year, and they are used mainly in community policing where they can use their local knowledge. There is no rank structure and no way of progressing. It was his evidence that there is a complete divergence in roles, between a Reserve Garda and a Garda. The reserves are unsalaried, volunteers with limited functions that they can perform. They are always accompanied by a sworn Garda member. Sometimes they can be used for policing sporting events but are mainly used in community policing. They would not normally be assigned to static security duties as those duties are usually carried out by a Garda or armed Garda. In exceptional circumstances like a visit by a head of state they may be deployed to assist in public safety, but they would not be deployed if there is a concern about public order.

The Commissioner stated that there is very little capacity to assign staff permanently to what could be described as light duties and it usually only happens on the recommendation of the Chief Medical Officer. Civilisation of a number of roles has freed up Garda members from control rooms and front desk duties. Computer/ ICT tasks require specialist skills, and they recruit in for those positions.

The Commissioner stated that because Ireland has a unitary service unlike other police forces in the UK or in Europe, they cannot call on anyone else for assistance. In other jurisdictions they have different services, and they separate out national security and the policing functions.

The Commissioner accepted that currently there is no process for requiring Gardai to maintain fitness post attestation. The financial cost of testing staff post attestation is huge and includes the cost of lost hours, cost of the test, and backfilling of staff. It also raises the issue of what to do if someone fails the test. There are no regulations in place in respect of fitness testing or procedures for dealing with permanent staff who do not pass such a test. Probationers have to maintain fitness during the BA course and during their two-year probation. The Commissioner accepted that there is no upper age limit in the PSNI since 2000 and that there is no universal fitness test except for members working in specialised units.

Commissioner Harris stated that between 2009 and 2014 there was no recruitment to An Garda Siochana even though people left the force during that period. The impact of that was that the organisation grew older in age. It took some time to negate the impact of the recruitment embargo but at this point in time it has been negated by the fact that younger people are now joining the force. Ireland needs to look at how representative its police force is. In the UK dropping the age was used to widen the pool of candidates and build representativity. In a recent Irish competition, they received 10,600 applicants for a competition of which approximately between 1,200 and 1,600 will be called. While they do not have an age breakdown, the diversity in applicants was in the younger age groups. Commissioner Harris informed the Court that Ireland does not have the same issues around recruitment and diversity that existed when the UK removed the age cap.

He went on to say that the demands on Gardai have to be managed within the cohort of staff that they have. They cannot rely on any other body. The Commissioner stated that An Garda Siochana is moving towards more 24/7 shift patterns and the unitary nature of the Irish force differentiates it from other forces. The age cap of under 35 and retiring at 60 allows an individual to join at the top of the cap and have twenty-five years’ service. In that period, they can build up the necessary skills and attain rank or even join a specialism.

Ms Barrington SC in cross examination put it to the Commissioner that he endorsed the goal of anti-discrimination and he agreed with that statement. He also confirmed that he supported the diversity policy adopted in 2019. It was put to him that he supported diversity in many forms but not age related. The Commissioner stated that in coming to the conclusion that the age cap of 35 was required he had considered his responsibility to deliver a service that had the operational resilience to protect the people of Ireland.

Ms Barrington SC queried the logic behind the increase in age from 26 to 35 in 2004 and noted that the cap in Northern Ireland had been 30 but was removed completely. The Commissioner stated that he could see the rational of increasing the age cap from 26 to 35 as it provides a 17-year window for anyone who wanted to join. It is his belief that it was a proportionate response to the Directive, but he was not aware of the reasoning at the time or how they had come to a decision that 35 was an appropriate age. The Commissioner confirmed that because the recruitment age was capped at 35, he had no concerns about the resilience of the force.

Ms Barrington SC drew the Commissioners attention to a letter of June 2006 that was written to the Equality Authority referring to the Framework Directive and stating that the Garda Commissioner determined the maximum age limit. The Commissioner confirmed that he was not aware of basis upon which the then Commissioner came to that decision. A further letter of 17th May 2008 was shown to the Commissioner which stated that the “these regulations are under constant review“. The Commissioner stated that to the best of his knowledge no review had taken place between 2004 and 2018.

The Commissioner accepted that the bigger proportion of officers will stay as Gardai for the duration of their career and that they currently have a large pool to draw from in terms of the available promotional grades. The Commissioner set out the number of staff in the ERU and ASU noting that they were not currently at their operational figure. In respect of specialist and promotional posts it was accepted that of approximately 14,300 gardai only about 3,000 held promotional posts. He also confirmed that roles that had been converted to administrative roles did not have an age cap and were filled on the same basis as other civil service administrative posts.

In respect of Garda Reserves it was put to the Commissioner that while the current focus was on using the Reserve Garda in the community the Garda Reserve strategy 2020-2025 states that Garda Reserves, are given the power of arrest for an arrestable offence under the relevant legislation. It was put to the Commissioner that if Garda Reserve have the powers of arrest, public order powers and powers under the Road Traffic Act why is there a need for a difference between the age cap for Gardai of 35 and Gardai Reserves of 60? The Commissioner stated that it was comparing apples with oranges, the Reserves were volunteers with a bespoke role and no career path as opposed to full-time Garda members pursuing a career within policing with the opportunity of both promotion and/ or going into a specialism.

Ms Barrington SC opened ‘The Future of Policing in Ireland’ report (September 2018) chapter nineteen last two lines of paragraph 5 which state “Agediversity should be encouraged. The current maximum age limit of 35 is outdated and should be scrapped”.The Commissioner stated that he takes a different view on this particular issue. That report made a number of recommendations. Consideration of those recommendations lay with the Department of Justice and the Taoiseach and some of the recommendations were adopted into the Programme for Policing Service for the Future, but that recommendation was not. The Commissioner stated that he was not aware of any review or consultation that took place with a view to give effect to that recommendation. The Commissioner stated that the cap has proven its value through organisation resilience.

When asked to comment on the fact that the PSNI had lifted their cap the Commissioner stated that it was like comparing apples with oranges. He accepts that the PSNI is an efficient police force, the age cap was lifted for different reasons. The current age cap is 57 but they do not have a regulation prohibiting service beyond 60. The PSNI is not a unitary police force in that they can call on other police forces in the UK.

Ms Barrington SC put it to the Commissioner that in terms of European communities 11 out of 16 countries in the list the Complainant’s had provided do not have any cap on age recruitment. The Commissioner responded that Ireland is different to most other countries as they tend to have separate security agencies, border forces, and national organisations dealing with crimes. Ireland only had one organisation An Garda Siochana.

Ms Barrington SC asked if in the developing areas such as cybercrime there could be a role for the older recruit? The Commissioner stated staff working in that type of specialisation tend to be over 35 years of age but have their life experience and police experience which an older new recruit would not have. In respect of the number of applicants over age 35 if the cap was lifted, he stated that he had no idea what the number of applicants would be and confirmed that he had not carried out any research, nor was he aware of any research from other jurisdictions on that issue.

It was put to the Commissioner that Dr Thomas will say only a handful of applicants tend to be over age 35. The Commissioner was asked if people over age 35 who were likely to apply would be less fit that serving people in the same category and how can they know the fitness levels of the current cohort of staff. The Commissioner stated that they don’t currently have that data but by looking at the pattern of ill health and absences they can surmise about the fitness of the current staff as a whole.

The Commissioner accepted that currently they have no data on the fitness level of Gardai but pointed to the fact that a lot of them are involved in various sports and clubs, and a number of stations have gym equipment in them. Once a Garda has successfully completed their probation there is no further assessment of their fitness levels. The Commissioner accepts that he is assuming people are maintaining their fitness level throughout their career based on his knowledge of people’s involvement in sports clubs and charity engagements. They are encouraged to participate and can get duty credit for doing so.

Ms Barrington SC asked the Commissioner to look at the Losty report, which was based on research carried out in 2016, it showed that during training regardless of age, people’s fitness levels dropped during the two-year training period. The Commissioner stated that he had not previously seen that report.

In response to a question, he confirmed that he was aware that the defence forces carry out annual fitness test. An Garda Siochana did a first cut of what it might cost to have regular fitness testing for the whole force and the loss of days alone would cost €2.9 million. This did not include the cost of the test or travel and subsistence. These figures were prepared for the purpose of the hearing.

The Commissioner accepted that fitness is a positive issue, but that annual testing is prohibitively expensive and a drain on resources. He does not believe that you can compel people to be fit. An Garda Siochana gives duty credit for involvement in sport this does not happen in other forces. It also raises the question as to what you do if someone fails the test and what does that mean for that individual. It was put to the Commissioner that Dr Thomas will give evidence that the cost of fitness testing is marginal, and that in the UK fitness training is every three years combined with other forms of training. He will also state that if testing is introduced on a voluntary basis, that from his experience, there will be no Industrial relations issues.

Ms Barrington SC put it to the Commissioner that it was his position that one of the reasons that the cap was warranted was because of the physical demands of the job, yet there is no data to show that existing staff have the required level of fitness or have even maintained the fitness level they had when they attested. He also appeared to be influenced by the fact that there are no formal category of light duties other than when recommended by CMO for a period of time and that shift work would be tiring and wearisome particularly for people over 35. It was put to him that he believed that these issues supported retaining the age 35 cap. The Commissioner responded that he believed the age cap was an appropriate way of ensuring the reliance of the force.

The final question put to the Commissioner by Ms Barrington SC was in respect of section 37 (4) of the Act, the Commissioner confirmed that to the best of his knowledge this section has never been invoked.

Professor Rose Ann Kenny

Professor Kenny took the Court through her report and its findings in respect of the impact of shift working on sleep patterns. The study was of 3,223 people some of whom were shift workers, who were either working or retired and the reference age is 32. The study shows that as against someone who never worked shift someone who worked shift at 42 is 3.17 times more likely to be taking hypnotics, that increases at age 52, to 7.64 times and at 63, to 12.5 times. Generally, people have trouble with sleeping as they get older, and the study shows a clear age gradient after age 32. Professor Kenny then went on to talk about the fact that the brain processing speed starts to decline after age 20. With memory there is not as dramatic a decline, with episodic memory not showing much decline until after age of 60 when there is some decline, but it is not significant.

In respect of reasoning there is decline from age 20 onwards. However, in terms of functionally there isn’t a while lot of variation, as experience and wisdom continue to increase as we get older.

Professor Kenny stated that in terms of physical ability if you are functioning as a master athlete you will retain physical function very well. She then spoke about the ‘time and go’ test which was carried out on people over 52 with a mean age of 62 and tracked the differences between male and females. The test showed that after the age of 70 the spread between male and female became more marked. She stated that a more salient measure of the effect of ageing on physical ability is grip strength which rises up to the age of about 25 to 30 and then starts to fall and the fall is probably most precipitous in men after the age of 54. Another factor that can be looked at is maximum heart rate during exercise which start to drop after age 20. These tests are in respect of the general population and do not include elite athletes.

Multi-morbidity is defined as having two or more chronic conditions. Studies show that in the age bracket 45 to 49, forty percent of the population based on European data present with two disorders, but in the age bracket 60 to 64 about fifteen percent have four disorders.

Professor Kenny explained that there are two types of ageing, chronological ageing which is the number of candles on your cake and biological ageing which can be influenced by a number of factors including exercise, socio-economic background and education. However, measuring biological age is still a work in process and the tools that are currently available are not accurate enough. It was her opinion that socio-economic factors can have a bigger impact on biological ageing than moderate or low physical activity. The model she used is based on the information provided by the Commissioner. There is no reliable evidence currently available in relation to An Garda Siochana and repeated fitness testing. Given the restraints of the current system it was, in her opinion, reasonable to have an upper age limit. Professor Kenny confirmed that she did not disagree with the medical evidence in theSorondocase.

It was put to Professor Kenny in cross examination that using chronological age is a blunt instrument, she accepted that and went on to state that currently biological ageing is not at a stage where it could be described as being reliable. In her opinion cardiovascular fitness is a good proxy one of the best we have at the moment. She confirmed that she did the study on shift working and age and it also assessed fitness and physical activity. Professor Kenny accepted that physical activity is of benefit to the sleep cycle and can combat the effects of shift work in certain circumstances and that the steepest decline in physical fitness happens after age of 60 for everyone. She went on to say that after age 50 about 70% of people are significantly obese or overweight.

Professor Kenny accepted that if physical performance is so important to having a force that is fit for purpose it would be intuitive that it would be measured but that did not happen. Looking at the reports she had, it is fair to say that variation is not great up until about 60. Where she diverges from Professor Moyna is the weight he applies to the potential for physical activity to impact on the ageing process. Professor Kenny accepted the proposition put by Counsel that a probationer Gardai that passed the relevant fitness test at age 35, or 40 or 50 is going to be in better physical condition at age 60 than a person who had passed the test at 25 and may not have taken exercise. Professor Kenny stated that her conclusions are based on the facts as provided to her by the Commissioner and working on the assumption that the Guards are behaving in the same manner as the general population as there are no statistics around fitness levels for An Garda Siochana.

Dr Murphy Griffin

Dr Murphy Griffen stated that an element of the entry test to An Garda Siochana is a physical competency test which is made up of a few different parts some parts are weighted for age and gender other parts are not. The particular test she is referring to was introduced in 2014 after the moratorium. They have three age brackets 18-25, 26 to 35 and 36 to 45. Dr Murphy-Griffin referring to her report stated that the ageing process is irreversible and inevitable and can be divided into two divisions. The first is primary ageing which is inevitable ageing, from the age of 20 we start to lose our maximum heart rate. Secondary ageing is related to other factors such as diet exercise and can be accelerated or decelerated. All these things can affect your biological age and would be linked to secondary ageing.

The weighting of the fitness test for new entrants into three categories, and assigning the different weights, were introduced in 2014. Dr Murphy -Griffin indicated that she accepts that the effect of ageing can be attenuated but does not accept that it can be stopped. She stated that research shows that 6 out of 10 adults are not taking part in the recommended 150 minutes of activities a week.

Under cross examination Dr Murphy- Griffin stated that in the absence of a challenging test the risk or likelihood is that fitness will slip in the real world. She accepted that it would be super for An Gardai Siochana to have ongoing fitness testing but she was not sure that An Garda Siochana have the resources to do it.

It was her evidence that with ageing, after 40 years of age, adults may lose up to 1.5% of their maximum strength. She accepted that assumes you are not taking resistance training and went on to say that, even if you do train you will lose some strength. Dr Murphy- Griffin agreed that cardiovascular fitness is the best proxy of fitness and biological ageing and also accepted that without training cardiovascular fitness would decrease post probation. People who are physically able and physically fit are better able to deal with stress. Dr Murphy Griffen stated that in the general population 6 out of 10 people are not engaging in regular physical activity, and that you could apply the same assumption to members of An Garda Siochana.

Dr Oghuvbu CMO

Dr Oghuvbu stated that Occupational medicine manages the interface between health and work, the impact of work on health and vice versa. This is important in terms of the operational resilience of any organisation including An Garda Siochana. Arising from his specialisation in Occupational medicine he is well placed to comment on patterns of health or ill health.

People are referred to Occupational Health because of medical certification from their own doctor or they have developed ill health and they are absent. His role as Chief Medical Officer is to advise management in the context of the medical information available to him, what the person can and cannot do, for example, no night working or shifts with a view to getting the person back to full health.

He interfaces with probationers involved in the medical process for entry into the guards. When they come in, they may develop medical issues, his office will get involved to see if a reasonable accommodation can be facilitated or if they have a time limited injury. In those cases, their probation is put on hold for that period.

Applicants are not referred to Occupational Health if they did not pass the fitness test unless there is a medical reason why they failed it and there is a reasonable chance they can do it at a later stage. In his opinion age is not unimportant, and it is not inconsequential. The current average age of successful applicants is 24. Dr Oghuvbu stated that peak fitness is reached between ages 18-25 and declines every decade after that, you can still find fit people, but the pool is smaller the older you get.

He is aware that the Army carry out fitness testing, but they have a wider range of grades and people are stepped down a grade if they do not pass a fitness test. Space to accommodate people on less demanding duties has been reduced in An Garda Siochana because of the civilisation of posts. Currently there is no infra structure for testing or for dealing with Gardai that may not past a post attestation fitness test. Post attestation testing would also increase the workload of Occupational Health. Dr Oghuvbu confirmed that he would like to know if they had a fit organisation. That is what fitness testing would provide them with, but they currently have a surrogate, in the fact that the majority of the members are at work carrying out their duties so that is an indication that as an organisation, they are fit for purpose.

In terms of current absences most occupational injuries occur in the age group 36-45. From January 2017 to July 2021 the highest absence rate is in the 36 -40 age group with an average age of 39. In terms of the list of illnesses he has identified they are more likely to present after 35. These are conditions that tend to just accumulate gradually over time with age. If you remove the age cap you are likely to see more people presenting with these elements.

It was put to Dr Oghuvbu that Garda younger than 36-40 and older tend not to have such high absences. He accepted that and the fact that in the age cohort he identified that due to family and other pressures they are more likely to take time off. He went on to say that most of the older people would be doing supervisory type roles where the demands were not as much, and they were more settled in terms of managing themselves. In respect of the list of illnesses he identified he accepts that they can be linked to genetics and lifestyle. However, in his opinion some are linked to age. Dr Oghuvbu stated that he accepts that there is no link between lifting the age cap and post attestation fitness testing.

Superintendent Aidan Minnock

Superintendent Minnock stated that he is currently Head of Foundation Training in An Garda Siochana and was appointed to the position in 2022. He indicated that he was in a position to speak about the training during the relevant period as he was involved in conducting a training review in 2010. The report was written in 2009, published in 2010 and recommendations arising from the report were implemented in 2014. It led to an accredited BA in Applied Policing programme which was introduced in 2014. The report led to changes in the foundation programme for pre attestation training. He informed the Court that he attested in 1995 and at that time the upper age limit was 26.

He explained to the Court the training procedures that were in place in 2005 and 2007 and the various changes that had been made over the years to the training process. While the duration of the training has not changed significantly the way it has been modularised allows for a mixture of classroom and on the job training. The trainees are also subjected to a fitness test prior to entry and prior to attestation which they must pass.

An Garda Siochana has seen an increase in the diversity of new recruits over the years with female application now being in and around 35%. They have also seen an increase in trainees that have completed university courses prior to applying to become a Garda. The average age of attestation is now 27. When he came in most trainees were in their early 20’s.

In terms of the implication of removing the upper age limit, Superintendent Minnock stated that they need a large pool of candidates with experience as an operational Garda for the specialist posts. In 2016, about 500 gardai applied for ASU posts and they the filled 19 vacancies that existed at that time. The average age of the successful applicants was 33 with an average of 10 years serving experience. Vacancies in ERU are usually filled by people with ASU experience. If the age cap is removed, it reduces the size of the applicant pool for specialist positions. The specialist posts require people to get experience and bring that experience to the specialist post. The Irish police force is quite unique as an organisation as they look after State security and Community policing and the Commissioner has responsibility for both.

In response to a question from Counsel under cross examination, Superintendent Minnock confirmed that the Policing Board had made recommendations in respect of the structure of training in 2018. An Garda Siochana are taking a different approach to what the Board recommended, an approach they believe is more beneficial but also reduces the cost of training new recruits.

In 2019 An Garda Siochana adopted a Diversity strategy and the Commissioner in his evidence confirmed that he endorsed the principle of diversity. Superintendent Minnock confirmed that he was of the view that diversity in training in terms of gender and racial diversity has improved. Superintendent Minnock stated that the reasons being relied on for keeping an upper age cap of 35 is to maintain an applicant pool for special posts, maintain a pool of young fit people. It is his belief that a younger cohort can deal with the stress of the job better.

It was put to him that his position is predicated on the assumption that people as they get older lose fitness. If the justification is the requirement that all guards are fit, but you accept that not all guards are fit for the duration of their career, is that not contradictory? Superintendent Minnock stated that he did not believe that his position was contradictory he stated that they needed a pool of people to fill the specialist posts but depending on the number of people who came in over 35 it could impact on the size of that pool of applicants.

Ms Barrington SC put it to him that the Finnish and Swedish witnesses will say that when they lifted the age cap there was not a significant increase in applicants over 35. It is his position that Ireland is different in that one of the justifications for the age cap flows from the fact that Ireland has a unitary police force, another reason is that it helps if people are younger because of the skill sets required.

Superintendent Minnock confirmed that next year they hoped to have an intake of about 1,000 new recruits. The cut-off date in terms of age is the closing date of the application process. Depending on where people are placed in the panel, they can be 36/37 before they are actually called for training in Templemore.

Ms Murray

Ms Murray stated that her current role is Head of Industrial relations with An Garda Siochana, before that she worked in the Department of Health in National HR on the IR side of the house. She has an extensive background in Industrial Relations. There are four Garda bodies representing various grades that she would engage with. In her experience changes have to be introduced by agreement. Recently they moved to online payslips and the initial response from the representative bodies was resistance, but they worked their way through their concerns and reached agreement.

If they were to introduce post attestation fitness testing, there would be strong opposition from existing staff as it would be seen as a significant change to their terms and conditions of employment. It has not been formally discussed with the representative bodies as it is not considered to be a viable option at this point. There would also be logistical difficulties as they would need a process for people who did not pass the test and there is no provision for same in their current procedures.

Ms Barrington SC put it to Ms Murray that while she was saying there could be issues, she was not saying it could not be done. Ms Murray stated that she was saying that based on her experience there definitely would be difficulties. Ms Murray accepted that no modelling had been done by the Respondent as to what they would do if the age cap was lifted.

Ms Annemarie Staunton

Ms Staunton stated that she was employed in An Garda Siochana as a Professional Accountant since February 2018. She was asked to estimate the payroll costs of Gardai attending a day long training course. Ms Staunton took the Court through a document she had prepared giving a breakdown of the costs of post attestation training including the cost of backfilling the posts. She also set out the assumptions that underlay the costing including the working assumption that each garda member that attended post attestation training would miss a full 12-hour shift. It was done this way as generally people do not do a partial shift and cover provided would be done by another Garda doing overtime.

Ms Staunton confirmed that her calculations were done earlier this year and that it was a first cut at costings. Her estimate is that it would cost 20% of the €35 million allocated to the Garda College. It was put to her that there is ongoing fitness assessment for cuff and baton training, and that Garda attending that type of training are not all back filled in the station. Ms Staunton indicated that she was not aware of that. She was asked to cost a day’s absence and that is what she did. She did not enquire how long the test would take nor has she considered any other models. She accepted that the figures were worst case scenario.

Mr Edmund O’ Reilly

Mr O’ Reilly informed the Court that he has held the position of Head of HR Directorate in An Garda Siochana since July 2019. It was his evidence that there is no general mechanism for placing a member on light duties. Only the CMO could recommend that someone should be placed on light duties. It was his belief that there was a link between having an upper age limit and light duties. When someone is looking to come back to work after a period of illness or injury Garda Occupational Health will advise if they are fit to return and if there are any restrictions on what they can do.

Light duties can cover a range of options such as reduced hours, coming off shift work, being placed into another role, shorter shifts, deskbound duties or removed from night duties. In general, anything that is less than what a normal garda would do is considered light duties. In quarter two of 2022 there were 613 gardai on light duties.

The nature of the role of Gardai is operational and putting people on light duties is taking Gardai with Garda powers away from those roles. The current average age in the force at the moment is 41. They cannot have a situation whereby they have people coming in looking to do light duties. The CMO gave a list of ailments that are relevant to people as they get older, and he believes that by lifting the cap these illnesses could become common place in the gardai in the same way as they are in the general population.

Mr O’ Reilly accepted that many Gardai are doing specialist roles and not out on the beat and that some of these specialist roles are desk bound. Ms Barrington SC asked why the way they define light duties is relevant to the need for the cap and if they are assuming that if the age cap is lifted someone coming in at 38 will be in worse physical condition than somebody already serving who is 38. Mr O’ Reilly confirmed that it is because of what they know about people already in service, a number of whom are already on light duties. Mr O’ Reilly stated that he did not have a breakdown by age or injury/ illness of the people currently on light duties. He accepted that he was not stating that there were more older people on light duties. Currently there are 613 people on light duties, he does not have a breakdown of physical injuries versus mental illness or the age cohort, or if the absences arose from an accident on duty. Mr O’Reilly accepted that about 85% of Gardai of all ages come to work every day and do their job. He confirmed that he had read Dr Thomas’s witness statement, but it did not change his mind about the need for an age cap.

Ms Mc Kenna

Ms McKenna informed the Court that she is a Principal Officer in the Department of Justice Criminal Governance section since 2019, prior to that she worked in the policy division. The Commission on the Future of Policing was established by the then Tánaiste in 2017. It was chaired by Kathleen O’ Toole and comprised of 11 other members independent of the Department. The Department did not make a submission, but they did engage with the Commission. There was also a second report Key Recommendations and Principles, and that document did not contain any reference to lifting the age cap. In December 2018 the Government approved the Key Recommendations and Principles document.

Ms Mc Kenna stated that An Garda Siochana are aiming to recruit 1,000 members in 2023. In 2022 they had funding for up to 800 new recruits, but they only recruited approximately 200. It was her evidence that in terms of gender diversity among applicants, the break down is about 27% female to 73% male. In respect of the most recent competition, they worked with stakeholder to attract applications from non-traditional areas.

Ms Mc Kenna stated that the Key Recommendations and Principles document was published at the same time as the Commission on the Future of Policing. It was her evidence that the Department only focused on the Key Recommendations and Principles document. In terms of the last recruitments, they had over 10,000 applications but they only processed 260 applications. There was a huge drop off as a number of the applications had applied for various other jobs as well.

Ms Yvonne Cook

Ms Cook informed the court that she currently holds the position of Acting Executive Director of HR. She commenced employment with An Garda Siochana over one year ago she is a member of Garda staff but not an attested Garda and has ultimate responsibility for all Garda HR. Prior to commencing in this role, she worked in the PSNI as Director of Human Resources, and before that worked as an Occupational Psychologist involved in national work group and international secondments on culture reform.

In respect to a question that arose earlier it was her evidence that ordinarily there would be backfill if a Garda had to attend training while rostered for duty but there could be exceptions. It was her evidence that 8% of the annual Garda Siochana budget relates to backfill.

Ms Cook stated that when she was in the PSNI they could benefit from mutual aid from other forces. However, as An Garda Siochana is a unitary force it does not have that option. If in her previous job, mutual aid was required, an application was made to central office for specific expertise or additional staffing and stating why it was needed. Sometimes the aid would be provided with no cost or other times the requester would have to cover the cost of travel and wages.

Ms Cook stated that her observation of the Commissioner’s role is that it is challenging for a couple of reason. The main difference between his role and his counterpart in the UK is that he is responsible for policing and security. In other countries there are separate Commissioners. The Commissioner has to optimise the numbers that can be deployed at any one time. From a resource perspective the younger people are when they join the force the more time, they have to obtain the skills for a specialist unit and or obtain higher ranks. Ms Cook stated that because of the geography in Ireland the model used is predicated on single patrolling which means members travel alone as opposed to other countries where they travel in pairs. The more people who are emotionally and physically agile the more flexibility you have in terms of optimising the number that can be deployed at any point in time.

The age limit for the PSNI was removed in and around 2001 it was gone when she worked there. The PSNI do not have post attestation fitness training. The Police Federation would not agree to it. The age cap was lifted within the UK because of significant issues in recruiting people into policing.

In the UK there is annual post attestation training. It is her understanding that in the UK where people are failing the mandatory fitness tests, they are not exiting them, they are being put through development training but there is no record of people being exited.

Currently in An Garda Siochana they have a high level of applications for competitions. However, the applicants do not all stay with the process. There are huge concerns going forward about attracting and retaining people in the police force as people are not necessarily looking for a job for life. In the latest competition they had 10,500 applications but realistically those people were probably also applying for other jobs. Prior to that competition they had an outreach programme which connected with underrepresented communities. There is an attrition rate with the applications which means they will probably need to run another competition next year.

In terms of the number of people over 35 who would have successfully applied for PSNI jobs, she does not have the figures to hand but recollects there were people in their 40’s. In terms of difficulties that were caused by that cohort of people there can be logistical issues and age can be a factor in that.

Ms Cooke said the focus of her evidence is to highlight the challenges that the Commissioner faces having come from working in a different jurisdiction and why she understands he is saying that he needs to retain the age cap. Ms Cooke stated that it is linked to two issues the fact that it is a unitary police force and the need to be able to resource specialist areas. Ms Cooke went on to say that she did not believe that fitness testing would solve the issues that could arise from lifting the current age cap of 35.

She confirmed that while they get a large number of applications for competitions, the challenge can be that during the competition process there are some double applications, some people change their minds and other do not get through Templemore. Nowadays people don’t want to be tied to a job for life because they have other opportunities. Ms Cook confirmed that she did not have statistics for the number of people over 35 applying for positions but she was aware of people in their 30’s and 40’s applying She was not in a position to say what percentage of the applications they covered. Ms Cook accepted that if you lift the cap all you have is more people applying, and that they still have to go through all the stages including fitness testing, before attesting as a Gardai. She stated that you cannot pick out age perse as an issue but the older you get the more challenges you have.

Will Gardiner Inspector.

Inspector Gardiner Head of Garda Employee Relations firstly addressed the requirement to back fill if Gardai had to leave their shift. It was his evidence that even if the testing was only for one hour, in most situations you would have to backfill. He gave examples of why you would have to provide cover. While in a bigger station like Store Street you might not have to back fill at all times, most stations are not that size. If a garda is called into cover, he would be paid for a tour of duty which is a 12-hour shift. Current roster is 12-hour tour which is applicable to about 8,000 Gardai including Sergeants and Inspectors and it is 4 days on and 4 days off. Others do 10-hour tour 6 days on 4 days off and others do 8-hour days.

Back in 2007 a report was done which indicated that the cost of training a recruit was €73,000. The underlying assumptions that underpinned that figure included the costs to the service of all of the payments that were made to the individual which included the training allowance, the living out allowance and the rent allowance. The figure was based on the training programme that operated at that time. In his opinion it takes about 5 years to get on top of the job. You cannot apply for a specialist post until 2 years post completing probation.

In respect of pension contributions, the later you join the more pension you lose as first 20 years is just normal accrual the last ten years are fast accrual where you get two years for every one year worked.

He took the Court through some modelling that had been done assuming an intake of 500 recruits and 5% of applicants being over 35 in 2022 and projecting out to 2037 over time this will lead to an increase in the average age of a garda which is currently 38. They also did a modelling exercise with 8% of applicants being over 35 as Dr Annell from Sweden indicated in his report that their application rate for over 35’s is 8%. The impact of increasing the percentage from 5% to 8% was mainly seen in the numbers in the 36-40 age group and the 51 to 55 age group.

He confirmed that they are starting to see newer people leave during training and during probation or after a year or two. They only recently started recording assaults on Gardai and there are an average of five assaults a week. Inspector Gardiner stated that he was not aware of the age breakdown of people on light duties. Once a member has served four years, they can apply for competitions for all specialist posts and after three years for sergeant post. In relation to Dr Thomas report in respect of issues that may arise if you only target younger recruits as they will all be seeking promotion at the same time. Inspector Gardner stated that had not been his experience in his view the younger you go in the more you learn and the more fit you are for a lateral position or promotion.

He confirmed that generally there is no back filling for short breaks, but it would depend on the station. Store street is one of the biggest stations so it may not need to backfill to the same degree as smaller stations. Training for ASP baton have to be recertified every two years. That type of training would be planned in advance so it could be possible in some circumstances to do it without back fill. Smaller stations could not let two people go without getting backfill.

Inspector Gardiner stated that he did a report and the cost of training a recruit was €73,000, that includes pay, expenses and accommodations. He accepted that recruits do some work during the training period and that was not factored into that figure. In terms of the recovery of the cost of training he believes that is an additional consideration in terms of lifting the age cap.

It was put to Inspector Gardiner that a report has been submitted by the Respondent setting out an assumption that it takes 28 years to recover the cost of training and citing that as another reason in support of not lifting the cap. Inspector Gardiner informed the Court that he was not in a position to comment on that as his expertise is in the operational end of things and not the financial.

He stated that, he does believe that pensions are a secondary consideration in terms of the requirement for the age cap. He confirmed that in the specialist services there are approximately 2,500 members and they don’t do the standard 12-hour shifts. It was his understanding that the average age people leave the force is 55 and average service at time of leaving is 31.5 years.

It was put to Inspector Gardiner that in respect of the flow charts that he had taken the Court through that there were errors in the assumptions as in year 1, 5% of application over 35 was presumed and was applied and that instead of following that through the years over the period to 2037, an additional 5% was added each year for four years against the original cohort with no allowance for additional recruitment giving a cumulative effect of 20%. It was put to Inspector Gardiner that in effect the charts opened to the Court were showing the impact of 20% of applicants being over 35 and not 5%. Inspector Gardiner reviewed the charts and confirmed that appeared to be the position, but that had not been the intention. The intention had been to show the effect of 5% of applicants being over 35 and 8% of applicants being over 35, and no witness was going to say that if the age cap was lifted 20% of the applicants would be over 35. Inspector Gardiner accepted that in the second chart there was a 4%-increase figure that could not be accounted for. Inspector Gardiner also accepted that the lifting of the cap did not automatically mean an increase in the number of staff seeking light duties.

The applicable Law

Section 34 (5) of the Employment Equality Acts 1998 to 2015 states:

• (5) Without prejudice to the generality of subsection (3), it shall not constitute discrimination on the age ground to set, in relation to any job, a maximum age for 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.
  

• (2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—
  (a) the characteristic constitutes a genuine and determining occupational requirement, and
  (b) the objective is legitimate, and the requirement proportionate.

• (4) If—
  (a) the Minister is of the opinion that the age profile of members of the Garda Síochána, prison service or any emergency service is such that its operational capacity is or is likely to be adversely affected, and
  (b) he or she by order so declares,
  the age ground shall not apply in relation to such competitions for recruitment to that service as are specified in the order.

• 
  For the purpose of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except gender) shall not constitute discrimination whereby reason of the particular occupational activities concerned or of the context in which they are carried out-
  • 
    (a)the characteristic constitutes a genuine and determining occupational requirement and

    (b)( b) the objective is legitimate and the requirement proportionate

• ( c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement

In the main the facts of this case as set out above are not in dispute. The Respondent accepts that the Complainant has raised a prima facie case of discrimination on the grounds of age. However, it is their submission that the maximum age limit for admission to An Garda Siochana is justified both under Section 37 (2) of the Act and Article 4 (1) of the Framework directive on the one hand and under Section 34 (5) of the Act and Article 6 (1) of the Framework directive on the other hand.

Both parties accept that the relevant judgments for the Court to consider from the CJEU areColin Wolf v Stadt Frankfurt am Main Case C-229/08, Mario Vital Perez v Ayuntamiento de Oviedo Case C-416/13 and Gorka Salaberria Sorondo v Academia Vasca de Policia y Emergencias Case C-258/15, as in this trio of cases the test as articulated by the CJEU was applied.

Following the closing of the hearing and prior to the Court issuing its determination it came to the Court’s attention that in November 2022 the CJEU had issued a further judgment on the issue of age limitations for access to a police forceVT v Ministero dell’Interno Case C-304/21. Both parties were afforded an opportunity to make a submission in respect of this case.

The Court reviewed the case law put forward by both parties starting with theWolfdecision which concerned the refusal of Frankfurt am Main to consider Mr Wolf’s application for an intermediate career post in the fire service because he had exceeded the age limit of 30 years. A total of ten questions in respect of this issue were referred to the CJEU. The CJEU determined that questions one to nine could be answered together and that based on their answer to those questions, question 10 did not need to be considered.

The CJEU held that the difference on grounds of age could be justified with regard to Article 4(1) of the Directive and therefore it did not need to examine whether it could be justified under Article 6 (1) of the Directive.

The German Government submitted to the CJEU that the aim of setting the age limit at 30 for recruitment to intermediate career posts in the fire service was to ensure the operational capacity and proper functioning of the professional fire service.

At paragraph 34 the CJEU noted“according to the German Government, the intermediate career in the fire service makes exceptionally high physical demands in respect of certain operations, which can only be satisfied by younger officials. In view of the medically proven ageing process, officials past the age of 45 to 50 years no longer possess those greater physical abilities and those operations have to be caried out by younger officials. The maximum recruitment age is thus intended to ensure that officials in the intermediate career of the fire service can perform the tasks which present highly physical requirement for a comparatively long period of their career.”

At paragraph 39 the CJEU held that “It is thus apparent that the concern to ensure the operational capacity and proper functioning of the professional fire constitutes a legitimate objective within the meaning of Article 4 (1) of the Directive.”

It also held at paragraph 40 that “It follows that the possession of especially high physical capacities may be regarded as a genuine and determining occupational requirement within the meaning of Article 4(1) of the Directive for carrying on the occupation of a person in the intermediate career of the fire service.”

At paragraph 43 the CJEU noted that “the firefighting and rescue duties which are part of the intermediate career in the fire service can only be performed by younger officials. Officials older than 45 or 50 carry out other duties. To ensure the efficient functioning of the intermediate career in the fire service, it may be considered necessary for the majority of officials in that career to be able to perform physically demanding tasks and hence for them to be younger than 45 or 50. Moreover, the assignment of officials older than 45 or 50 to duties which are less physically demanding requires them to be replaced by young officials. The age at which an official is recruited determines the time during which he will be able to perform physically demanding tasks. An official recruited before the age of 30, who will have to follow a training programme lasting two years, can be assigned to those duties for a minimum of 15 to 20 years. By contrast if he is recruited at age 40, that period will be a maximum of 5 to 10 years only. Recruitment at an older age would have the consequences that too large a number of officials could not be assigned to the most physically demanding duties.”

At paragraph 44 the CJEU held that having an age cap of 30 in the circumstances of that case was not going beyond what is necessary to achieve the legitimate objective of ensuring the proper functioning and operational capacity of the fire service.

The Court notes that in theWolfcase the requirement was the possession of ‘especially high physical capacities’. The German Government submitted uncontested scientific data to the CJEU which showed that respiratory, musculature and endurance capacity, diminish with age, and therefore, very few officials over 45 years of age would have sufficient physical capacity to perform the firefighting and rescue part of their activities. It was also submitted that people who have passed the ages of 45 to 50 are not required to do that particular work and work in other branches of the service.

This situation differs significantly from what happens in the case before this Court. The evidence before the Labour Court was that all Gardai, regardless of age, must from the start of their career to the end of their career, be capable of and are expected to carry out the full range of duties and that, other than when recommended by the CMO there is no facility to place Gardai on light duties. This suggests to the Court that all the duties of an Officer at Garda rank, are capable of being carried out regardless of age which differentiates it from the situation as set out above in theWolfcase. Unlike theWolfcase there was no scientific data or medical evidence before the Court indicating that Gardai of a certain age could not carry out some or all of their duties. There are specialist Units within An Gardai that require especially high physical capacity but those posts are filled from within, by a selection process which includes a fitness element and are not part of the Court’s considerations.

In terms of the medical evidence before the Court, all the experts agreed that there is currently no way of assessing the fitness levels of An Garda therefore the assumption has to be that their fitness levels are the same as the general population. While they also agreed that fitness levels can diminish with age, there was no clear consensus as to what extent that can be mitigated by being active and lifestyle choices. They did agree that a person who was fit at 40 was more likely to maintain their fitness that someone who was fit at 21 but did not continue being active. Taking all these things into consideration the Court finds that there are sufficient differences as set out above to distinguish the case before it from theWolfcase.

The Court then went on to consider theVital Perezcase. This case was in respect of a 30-year age cap for recruitment to local police officer posts. The CJEU first noted that it is settled law that it is not the ground on which the difference of treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement and that the possession of particular physical capacities is one characteristic relating to age.

At paragraphs 46 and 47 the CJEU noted that it is in limited circumstances that a difference of treatment may be justified where a characteristic, inter alia, related to age constitutes a genuine and determining occupational requirement. And that any derogation from the principle of non-discrimination must be interpreted strictly.

The Court goes on to say, “It must be determined whether, in the light of the discussion in paragraphs 39 to 41 of this judgment the particular physical capacities required for the post of local police officer are inevitably related to a particular age and are not found in persons over a certain age”.

The CJEU noted that there was nothing before the Court that indicated that the objective of safeguarding the operational capacity and proper functioning of the local police service made it necessary to maintain a particular age structure which required exclusively recruiting below the age of 30 and therefore the fixing of such an age limit was disproportionate. The CJEU then considered Article (6) of the directive noting at paragraphs 64 and 65 that the age requirement provided for in Spanish law was based on the training requirements of the post in question and the need for a reasonable period of employment before retirement or transfer to another activity. The CJEU accepted that these objectives are capable of justifying a difference in treatment on the grounds of age but indicated that it was also necessary to ascertain whether the means used to achieve the objective were appropriate and necessary. The CJEU held that based on the information before it no evidence had been submitted to show that the age limit for recruitment was appropriate and necessary in terms of the objective to ensure training of the Officers concerned.

In terms of the objective of securing a reasonable period of employment before retirement, the age of retirement for police officers was 65 and at age 58 they could request a transfer to other duties. The CJEU held that setting a maximum age of 30 in those circumstances cannot be considered necessary in order to ensure that the officers have a reasonable period of employment prior to retirement. The CJEU held that the difference of treatment cannot be justified under Article 6 (1) ( c) of the Directive.

The Court notes that the role of the local police officer in theVital Perezcase does not appear to be as wide ranging as the role of An Gardai and has factored that in to its considerations. The Court believes the differences in roles are sufficient to distinguish the case before it from that case.

In theSorondocase, the Basque Police and Emergency Services Academy Spain had an age cap of 35 for posts as Police Officers in the Autonomous Community of the Basque Country. The question referred for a preliminary ruling was“Is the setting of a maximum age of 35 years as a condition for participation in the selection process for recruitment to the post of Police Officer of the Autonomous Community of the Basque Country compatible with the interpretation of Article 2 (2), Article 4 (1) and Article 6 (1) ( c) of Council Directive 20000/78?”

The CJEU first looked at the issue in the context of Article 4(1) of the Directive. At paragraph 35 the CJEU noted that the nature of the duties require a particular level of physical capability and at paragraph 36 stated “It follows that the possession of particular physical capacities in order to be able to perform the three essential duties of the police of the Autonomous Community of the Basque Country described in law……….. may be considered to be a genuine and determining occupational requirement within the meaning of Article 4 (1).”

At paragraphs 42 and 43 the CJEU noted that the Academy maintained in reports to the Court that“from the age of 40 onwards the operational performance of police officers of the Autonomous Community of the Basque Country declines as reflected by reduced recovery capacity after sustained effort and an inability to perform any other similar demanding task until a period of time has passed. Further according to the same reports, a police officer who is more than 55 years old can no longer be considered to be in full possession of the capabilities necessary for the proper performance of his duties without any risk to himself and to third parties”.

At paragraph 46 it noted that the Academy stated that police officers of the Autonomous Community of the Basque Country qualify for a statutory reduction in annual time worked, from the age of 56 years, and are not required to work at night or to undertake patrols outside police stations. A police officer who qualifies for such an arrangement undertakes on a voluntary basis to retire at age 60 or, in some cases, at age 59.

Paragraph 44 reflected that data submitted by the academy indicated that by 2025 more than 50% of the police officers will be aged between 55 and 65 years old. The Academy also submitted that training a police officer took two years so therefore, an officer recruited at 35 would only have 19 years until they reach the age of 55 and that they required a balance between the number of physically demanding posts not suitable for older police officers and the number of posts that are less physically demanding which can be occupied by older police officers.

At paragraph 57 the CJEU noted, as the Advocate general stated in point 48 of his Opinion,” theinadequacies to be feared in the operation of the police service of the Autonomous Community of the Basque Country are such that it is not conceivable that, as part of a recruitment competition, the organisation of demanding eliminatory physical tests might constitute a less restrictive alternative. Since the objective is to maintain the operational capacity and proper functioning of the police service of the Autonomous Community of the Basque Country, that objective requires that, with a view to re-establishing a satisfactory age pyramid, the possession of particular physical capabilities should be envisaged not statically, at the time of recruitment competitions tests, but dynamically, taking into consideration the years of service that can be accomplished by a police officer after he or she has been recruited”.

The CJEU went on to say at paragraph 48 that “it follows that legislation such as that at issue in the main proceedings, which provides that candidates for posts of police officers of the Autonomous Community of the Basque Country must be under 35 years of age, may subject to the qualification that the referring court should satisfy itself that the assorted information to be obtained from the observations and documents submitted to the Court by the Academy and described above is accurate, be regarded, first as being appropriate to the objective of ensuring the operational capacity and proper functioning of the police service concerned and second not going beyond what is necessary for the attainment of that objective”.

The Courts notes that in the Basque police force officers 55 and over are no longer considered suitable for the full range of duties and can qualify for a statutory reduction in annual time worked, no night work and limited patrol duties. This differs significantly from the case before this Court where the evidence was that all Garda regardless of age must be capable of and are expected to carry out the full range of duties and that other than when recommended by the CMO there is no facility to place Gardai on light duties.

The CJEU also took account of what it referred to as re-establishing a satisfactory age pyramid noting that by 2025 more than 50% of Officers will be between 55 and 65 years old, and also the need to strike a balance between the number of physically demanding posts, not suitable for older officers and the number of posts that are less physically demanding which can be occupied by older police officers. The evidence before this Court was that the current average age of An Garda Siochana is 41 years of age and that there are no different roles related to age at Garda rank, within An Garda Siochana. Therefore, the issue of re-establishing a satisfactory age pyramid does not arise.

The Court finds that there are sufficient factual differences both in terms of age profile and the assignment of roles based on age in theSorondocase to distinguish it from the case before this Court.

The final case the Court considered wasVT,which issued on the 17^thNovember 2022. This case concerns the decision of the Ministry of Interior Italy not to admit VT to a competition to fill the posts of Commissioner of the Polizia di Stato on the ground that he had reached the maximum age limit (30) for that purpose. There was an issue in this case as to whether the role was mainly administrative or was such as to need a requirement of physical ability linked to age. In that regard the CJEU held that the court must take account of the duties performed on a regular basis by the post holders. It noted that the fact that some officers might be assigned to specific posts requiring particular physical capacities cannot justify fixing an age limit for participation in a competition of general application.

The CJEU held that if the duties are essentially operational duties, then a maximum age limit could be proportionate. At paragraph 61 the CJEU stated “Furthermore, for the purpose of analysing the proportionality of the legislation at issue in the main proceedings, the fact, raised by the referring court, that the eliminatory physical fitness test provided for in the competition concerned could constitute an appropriate and less onerous measure than fixing the maximum age limit at 30 is also relevant.”

At paragraph 66 the CJEU indicated that the referring court should determine whether any restoration of a satisfactory age pyramid within State Police could justify the age limit at issue and if no such need existed then“the existence of an eliminatory physical fitness test in the competition concerned would indeed constitute an appropriate and less onerous measure than the fixing of a maximum age limit of 30 years.

The Court held that subject to the verification to be carried out by the referring Court the fixing of the maximum age limit at 30 constituted a disproportionate requirement having regard to Article 4(1).

In terms of Article 6(1) (c) of the Directive and the requirement that the difference of treatment be justified on the basis of a legitimate aim and whether the means of achieving that aim are appropriate and necessary. The CJEU noted that it had no evidence to suggest that the age limit at issue was appropriate and necessary having regard to the objective of ensuring the training of police commissioners.

In respect of ensuring a reasonable period of employment prior to retirement, it noted that the retirement age was fixed at 61 and on that basis, the fixing of a maximum age of 30, in principle, cannot be considered necessary in order to ensure that the Commissioners concerned have a reasonable period of employment before retirement.

The Court notes that in theVTcase the particulars of the role were in dispute and that the CJEU endorsed its earlier judgments inVital PerezandSorondo, leaving it to the referring Court to establish whether the duties carried out were mainly administrative or required a particular physical capacity. It is therefore difficult for the Court to compare the facts of the case to establish the level of similarity if any in respect of the case before it and the VT case. Based on the information that is contained in the CJEU judgment the Court concludes that theVTcase is not on all fours with the case before it and can be distinguished.

The Court then considered the four limbs of the test as follows.

• 
  i) Is there a legitimate objective

  ii) Is the characteristic at issue a genuine and determining occupational requirement

  iii) Is the characteristic related to age

  iv) Is the requirement proportionate

The Court based on the evidence before it cannot see how the lack of mutual aid or the need to have a pool of candidates for specialist posts would require the exclusive recruiting of Garda under the age of 35 and could be considered to be a relevant consideration in terms of a derogation under s 34 or 37 of the Act.

In terms of the physically demanding nature of the role, the evidence before the Court was that currently all Gardai regardless of age carry out the full range of duties unlike in theWolfandSorondocases where older Firemen/Police Officers were assigned to different duties and did not carry out the full range of duties. It was accepted that there is currently no measurement of how fit the current force is, and there was no evidence before the Court to show that absence levels or assignment to light duties on medical grounds were more prominent in an older cohort of staff.

The Court has not therefore been persuaded that the objective of safeguarding the operational capacity and proper functioning of An Garda Siochana requires exclusively recruiting below the age of 35.

The characteristic as identified by the Respondent in this case is the possession of a high level of physical capacity. The evidence before the Court was that there is no mechanism to move Gardai to less physical roles and that all Gardai are expected to be able to carry out the full range of duties. This differs significantly fromWolfwhere firefighters over the age of 45/50 no longer carryout firefighting duties andSorondowhere police officers aged 56 and over qualify for a statutory reduction in annual time worked and are not required to work nights or undertake patrols outside of the station. The Court heard in evidence from Mr Numan that Swedish Police officers retire at 68 and light duties are only available to Officers who are injured. Dr Annell in his evidence stated that there is no ongoing fitness testing in the Swedish police force nor are there roles that would be classified as light duties. The retirement age is 68 and there is no provision to move Police Officers away from certain duties at a particular age.

The Court finds that the Respondent has failed to establish a correlation between the requirement of a high fitness level and the requirement to exclusively recruit under the age of 35. While the characteristic at issue might be genuine the Respondent has not established that it is a determining occupational requirement. Particularly in circumstances where there is no evidence before the Court showing that Gardai in a given age cohort cannot carry out the full range of duties. The CJEU noted in theVTcase “…for the purpose of analysing the proportionality of the legislation at issue in the main proceedings, the fact, raised by the referring court, that the eliminatory physical fitness test provided for in the competition concerned could constitute an appropriate and less onerous measure than fixing the maximum age limit at 30 is also relevant.”The evidence before the Court was that the recruitment process includes a physical fitness test that must be passed and a further fitness test prior to completing probation. The Court finds that the physical fitness tests as part of the recruitment process, could constitute an appropriate and less onerous measure than fixing an age cap of 35.

The third limb that the characteristic in question which in this case is possession of a high level of fitness, must relate to age. The medical evidence before the Court was that there are two types of ageing chronological ageing which is your actual age and biological ageing. The medical experts agreed that factors such as fitness could impact on your biological age but disagreed as to how reliably that could currently be measured. There was general acceptance that someone who was fit at 40 was more likely to sustain that fitness than somebody who was fit at 21 and did not continue to be active.

There was no evidence before the Court to indicate that Gardai of a certain age could not carry out some or all of their duties or that Gardai in an older age cohort had higher levels of absences or injury arising from carrying out their duties. The evidence before the Court was that 85% of Gardai are in attendance at all times and carrying out their full duties and that no facility exists to transfer older members of the force to less demanding duties. A report in respect of the impact of shift work on sleep patterns was opened to the Court which indicated that someone who worked shift work was more likely to take hypnotics than some one who had not worked shift and that likelihood increased with age. Professor Kenny stated that generally people have trouble with sleeping as they get older but accepted that physical activity can have a positive effect on sleep patterns.

In theVital Perezcase at paragraph 48 the CJEU stated “Itmust be determined whether, in the light of the discussion in paragraph 49 to 41 of this judgment, the particular physical capacities required for the post of local police officer are inevitably related to a particular age and are not found in persons over a certain age”.

The Court finds that in the case before it 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. On that basis the Court finds that the particular physical capacities required for the role of a Garda are not inevitably related to a particular age.

As the other elements of the tests have not been met the Court determined that there is no need for it to consider the 4^thlimb as to whether the requirement is proportionate.

The Court then went on to consider whether there is an objective justification as provided for in s.34(5) of the Act. The first element of that is in respect of the cost or period of time involved in training a recruit to an effective standard. The evidence before the Court was that the training takes two years which includes on the job placements. This is followed by a two-year probationary period and that realistically it could take up to five years to get to grips with the job and how to do it properly. A figure of €73,000 was put before the Court in respect of the cost of training. However, it was accepted that the figure was based on figures prepared in 2007 and included members’ salaries during their two years’ probation. It was also confirmed that no offset had been factored in to take account of the fact that they were working during the training and probationary period and that there had been a lot of changes to the training programme since then. The evidence before the Court was that the retirement age is 60 and therefore someone recruited under 35 would have a minimum of twenty-five years’ service.

Based on the evidence before it, the Court finds the age limit of 35 is 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 will be effective in the job. Having determined that neither derogation apply in this case, the Court determines that the age cap of 35 currently in place is discriminatory on the grounds of age.

Determination

The Respondent conceded that the Complainant had raised a prima facie case of discrimination on the ground of age. The Court determines as set out above that the maximum age of 35 for recruitment to An Garda Siochana as provided for in the 1998 Regulations as amended by the 2004 Regulations, does not constitute a genuine and occupational requirement as provided for in s 37 (2) of the Act, Article 4 (1) of the Directive. The Court further determines that the maximum age of 35 for recruitment to An Garda Siochana as provided for in the 1998 Regulations as amended by the 2004 Regulations, is not objectively justified as provided for in s 34(5) of the Act, Article 6(1) ( c) of the Directive. The Court determines that the Complainant was discriminated against on the grounds of age.

In the circumstances of this case the Court considers compensation to be the appropriate remedy and awards the Complainant compensation of €12,700.

The appeal fails. The decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
OC	______________________
25 January 2023	Deputy Chairman