Fabian Demicoli

When is Age Discrimination permissible?

principle of prohibition of discriminatory treatment on the basis of age mainly
emanates from Subsidiary Legislation 452.95, the Equal Treatment in Employment
Regulations (LN 461 of 2004). These regulations give effect to a number of
directives – Council Directives 76/207/EEC, 2000/78/EC, 2000/43/EC, 2002/73/EC
and 2006/54/EC and apply to all persons as regards both the public and private
sectors and including service with the Government in accordance with the
Extension of Applicability to Service with Government (Equal Treatment in
Employment) Regulations (SL 425.100).

Regulations put into effect the principle of equal treatment in relation to
employment by laying down minimum requirements to combat discriminatory
treatment on a number of grounds, which include age. An important point is that
the regulations apply to all persons in relation to conditions for access to
employment, including the advertising of opportunities for employment,
selection criteria and recruitment conditions, whatever the branch of activity
and at all levels of the professional hierarchy, including promotions. It is
expressly stated that it shall be unlawful for a person to subject another
person to discriminatory treatment, whether directly or indirectly, on the
grounds of age. However, "any difference of treatment based on a characteristic
related to grounds of … age … shall not constitute discriminatory treatment
where by reason of the nature of the particular occupational activities
concerned, or of the context in which they are carried out, such a
characteristic constitutes a genuine and determining occupational requirement
provided that the objective is legitimate and the requirement is proportionate"
(Regulation 4).

Employment and Industrial Relations Act (Cap 452), by virtue of which the
aforementioned regulations have been promulgated, tackles the issue of age in
relation to employment in article 36 (14) thereof. Indeed, the latter states
that the employer can terminate the employment of an employee when the employee
reaches pension age as defined in the Social Security Act. It is clear from the
wording that EIRA does not in any way preclude recruitment of persons of a
pension able age. EIRA is giving any employer the right to terminate an
employee's employment relationship upon the employee's reaching of the national
retirement age.

termination of the contracts of employment of retiring employees directly
benefits young workers by making it easier for them to find work, which is
otherwise difficult at a time of chronic unemployment. The rights of older
workers are adequately protected as most of them wish to stop working as soon
as they are able to retire, and the pension that they receive serves as a
replacement income once they lose their salary. The automatic termination of
employment contracts also has the advantage of not requiring employers to
dismiss employees on the ground that they are no longer capable of working,
which may be humiliating for those who have reached an advanced age.

European Court of Justice (ECJ) has delegated the application of age limits for
the recruitment of certain professionals, such as dentistry and fire fighting,
to the authority of the national courts, due to the health responsibility of
those professions. Directive 2000/781 prohibits discrimination on  grounds of age in the field of employment and
occupation. However, the directive does not preclude national measures which
are necessary for the protection of health. It also allows the national
legislature to provide, in certain cases, that a difference of treatment,
although based on age or a characteristic related to age, is not discrimination
and is not therefore prohibited. The ECJ noted that a difference of treatment
based on a characteristic related to age is thus permissible where, because of
the nature of an occupational activity or the context in which it is carried
out, that characteristic constitutes a genuine and determining occupational
requirement. A difference of treatment on grounds of age may also be accepted
if it is necessary for the protection of health or if it is justified by a
legitimate aim, including employment policy, labour market and vocational
training objectives. In a nutshell, our law prohibits discrimination at the
very first stance of access to employment and selection criteria on the ground
that the applicant trying to access a particular employment is of a particular
age, including a pension able age. However as is stated in our implementing law
and also as ruled by the ECJ.

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