What is the Basis on which the British Armed Forces is Exempt from Disability & Age Discrimination?

Legisation

The British Armed Forces are exempt from the age related provisions of the Article 13 EC Employment Directive 2000 (Employment Directive 2000/78/EC).

This allows Member States to provide that the Directive, insofar as it relates to discrimination on the grounds of disability and age, shall not apply to service in the Armed Forces.

The Directive states:

Recital 18

“This Directive does not require, in particular, the armed forces and the police, prison or emergency services to recruit or 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 or preserving the operational capacity of those services.”

Recital 19

“Moreover, in order that the Member States may continue to safeguard the combat effectiveness of their armed forces, they may choose not to apply the provisions of the Directive concerning disability and age to all or part of their armed forces. The Member States which make that choice must define the scope of the derogation.”

Accordingly, the UK’s age legislation, the Employment Equality (Age) Regulations 2006 (SI 2006 No 1031), contains an exemption for the Armed Forces in section 44(4), which states:

“These regulations do not apply to service in any of the naval, military or air forces of the Crown”.

Rationale

The rationale for the exemption is that Armed Forces personnel need to be combat effective in order to meet a worldwide liability to deploy.

Although, in itself, an individual’s age might not be the chief determinant of his or her effectiveness at a particular moment in time, it is a crucial factor in overall manpower planning in the Armed Forces.

Maintaining the optimum balance of age and experience in the Armed Forces is fundamental to operational effectiveness.

For this reason the Armed Forces have age-related policies that require personnel to leave after a certain number of years to ensure that there is a constant movement through the “promotion pyramid”, otherwise career advancement would become static.

This would be unacceptable as, compared to civilians, Service personnel are unable to move as freely in and out of the labour market.

Maintaining the balance of age and experience is fundamental to operational capability, and the terms of employment for Service personnel are structured accordingly.

This system, which needs to operate without legal interference, is clear, policy driven and has been accepted by Her Majesty’s Treasury/Cabinet Office as lying at the heart of the Armed Forces’ workforce strategy.

Useful Links

  • Employment Directive 2000/78/EC: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0078:en:HTML.
  • Employment Equality (Age) Regulations 2006: http://www.legislation.gov.uk/uksi/2006/1031/contents/made.

Reference

FOI 2016/00338 dated 08 February 2016.

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