Fabio Capello’s rather unexpected announcement prior to the recent England v Hungary game that David Beckham is ‘too old’ for international football has come as a shock to many people, not least it seems to David Beckham himself, who was training with the L.A Galaxy at the time. But is this, as some commentators have suggested, an example of age discrimination creeping onto the terraces?
According to Sian Williams, employment solicitor at leading Midlands law firm Flint Bishop LLP, the Employment Equality (Age) Regulations 2006 (the ‘Regulations’) make it unlawful to discriminate against employees or workers on the grounds of their age without justification. This type of treatment will only be justified where an employer can show that it is ‘a proportionate means of achieving a legitimate aim.’
Capello has now defended his statement by saying that after the team’s poor showing in the World Cup there is a need to bring in new players for the future. There may be some merit in the view that the need to improve England’s performance in future international tournaments is a legitimate aim.
Also, in the event that discriminatory treatment is not justified, there are a number of circumstances in which treatment will, nevertheless, be found to be lawful. For example, at present, an employer can require an employee to retire once they reach the default retirement age of 65. (The phasing out of the default retirement age is currently the subject of a Government consultation.)
In addition, employers will be permitted to treat employees differently where they possess a “genuine occupational requirement” relating to age.
For example it has been found by the European Court of Justice that German legislation setting the maximum age for recruitment of fire fighters at 30 was not discriminatory on the basis that physical fitness was a genuine occupational requirement for this profession. Given the link between age and physical fitness, it may be that at the age of 35, Beckham has reached a point where he simply no longer possesses the fitness required to compete internationally (although an employer would be ill advised to rely on this type of argument without having first done extensive research into whether it is a correct assumption).
However, whilst David Beckham is highly unlikely to put the England manager’s latest comments to test in an employment tribunal, this high profile story has highlighted that age discrimination is an issue that employees and the media are becoming more and more sensitive to – and employers need to be aware of the potential pitfalls. As compensation for age discrimination is unlimited, employers should make sure that they understand their obligations under the Regulations in order to avoid potentially expensive claims.