AIR NEW ZEALAND LTD V DAVID MCALISTER CA CA216/07

AIR NEW ZEALAND LTD V DAVID MCALISTER CA CA216/07 30 July 2008IN THE COURT OF APPEAL OF NEW ZEALAND CA216/07 [2008] NZCA 264BETWEEN AIR NEW ZEALAND LIMITED Appellant AND DAVID MCALISTER Respondent Hearing: 14 and 15 November 2007 Court: Arnold, Panckhurst and Keane JJ Counsel: A H Waalkens QC and K M Thompson for Appellant R E Harrison QC for Respondent Judgment: 30 July 2008 at 10.30 amJUDGMENT OF THE COURT A The appeal is allowed. B The principal question in the appeal is: Did the Employment Court err in law in concluding that the demotion of the respondent from his Boeing 747-400 flight instructor position occurred by reason directly or indirectly of a prohibited ground of discrimination, namely his age, in terms of s 104(1) of the Employment Relations Act 2000? We answer this question as follows: The Employment Court, having adopted the wrong comparator group, did err in law in reaching that conclusion.C We remit the matter to the Employment Court so that the respondent's disadvantage grievance can be resolved in the light of this judgment. D The respondent must pay the appellant costs of $8,000 plus usual disbursements. We certify for two counsel. REASONS OF THE COURT(Given by Arnold J)Table of ContentsPara No.Introduction [1]Factual background [4]Statutory provisions [16]Employment Court decision [21]Issues on appeal [29]Approach to appeal [31]Preliminary points [32]Discrimination law – general observations [35](i) Statutory basis [36](ii) General approach – authorities [39]Authorities dealing with ICAO/FAA age restrictions [46]Comparator group – general [68](i) Relationship with causation [68](ii) Authorities concerning identification of comparator group [70]Comparator group – this case [78](i) Relationship to "genuine occupational qualification" justification [79](ii) Identification of relevant comparator group [85]"By reason directly or indirectly of any of the prohibited grounds" [96]Genuine occupational qualification [106]Decision [116]Introduction[1] Broadly speaking, this case concerns the "Rule of 60" under which commercial pilots could not operate as pilots-in-command (PICs) on many international flights once they reached 60 years of age. The Rule was adopted internationally by the International Civil Aviation Organisation (ICAO) and by manyindividual jurisdictions, although not New Zealand. The appellant, Air New Zealand, developed an employment policy for its international pilots which reflected the rule. The appellant said that the respondent, a senior pilot, could not continue to be a Boeing 747-400 (B747) flight instructor once he turned 60 because he could not act as a PIC on sufficient international flights to maintain his flight instructor position. Consequently, the appellant (effectively) demoted him. [2] The respondent brought a personal grievance under s 103(1)(c) of the Employment Relations Act 2000 (ERA) alleging discrimination on the ground of age contrary to s 104(1)(a) and (b). He also brought a disadvantage grievance under s 103(1)(b). In the Employment Court Judge Shaw found that the appellant's policy breached s 104(1), and that the appellant had been discriminated against on the ground of age: [2006] ERNZ 979. The appellant sought and was granted leave to appeal on the five questions set out at [29] below: [2007] ERNZ 224 (CA). [3] Even though leave was given in respect of five questions, we will determine the appeal by answering the question which this Court identified as the principal question on the appeal, namely:Did the Employment Court err in law in concluding that the demotion of the respondent from his 747-400 flight instructor position occurred by reason directly or indirectly of a prohibited ground of discrimination, namely his age, in terms of s 104(1) of the Employment Relations Act 2000?Factual background[4] New Zealand is a contracting state to the ICAO. The ICAO produces standards governing the conduct of contracting states. It also makes recommendations. States may elect not to adopt some standards by entering "differences" in respect of them. [5] At the relevant time ICAO standard 2.1.10.1 provided:A Contracting State, having issued pilot licences, shall not permit the holders thereof to act as pilot-in-command of an aircraft engaged in scheduled international air services or non-scheduled international air transport operations for remuneration or hire if the licence holders have attained their 60th birthday.Standard 2.1.10.2 then provided:Recommendation: A Contracting State, having issued pilot licences, should not permit the holders thereof to act as co-pilot of an aircraft engaged in scheduled international air services or non-scheduled international air transport operations for remuneration or hire if the licence holders have attained their 60th birthday.[6] New Zealand, along with Australia, Fiji, Germany, Japan and the United Kingdom, chose not to adopt standard 2.1.10.1. However, other countries into or over which the appellant's aircraft fly did adopt the standard, in particular, Hong Kong, New Caledonia, Singapore, Tahiti and the United States of America. (As the latter is the most important for present purposes we will refer to it as a proxy for those countries that accept the ICAO age restriction.) In the United States the Federal Aviation Administration (FAA) reflected the ICAO standard in an operational specification, the effect of which was to prohibit the appellant from operating its aircraft in United States airspace with pilots aged 60 or more acting as PICs. They could act as co-pilots, however. The prohibitions affected approximately 89 per cent of the operations of the appellant's B747 fleet. [7] The appellant's employment policy for pilots attaining age 60 reflected the limitation on its ability to operate its aircraft over territories like the United States which had adopted the 60 year age limit. It provided:No pilot who has attained age 60 can hold the position of pilot-in-command on the 747 and 767 aircraft while the predominant operation of these aircraft is to or through territories and alternates that have adopted the ICAO and FAA Regulations in relation to the age of pilots-in-command.(The reference to "alternates" is to alternative landing places designated in respect of particular flights if for some reason the principal destination cannot be reached or utilised.) [8] The respondent has been a pilot with the appellant for many years. As at September 2004 he held the rank and equipment category of captain in the B747 fleet. He also held a standards position as flight instructor in relation to other B747 pilots. As a result of these roles he was almost invariably required to act as captain or PIC on B747 flights.[9] In January 2003 the appellant wrote to the respondent noting that he would soon turn 60 (his 60th birthday was on 16 September 2004) and advising him of the impact that the ICAO and FAA age restriction rules would have on his flying career. In the letter the appellant said that, as a result of the routes that it flew, there were few destinations (including alternate destinations) to which the respondent could fly as a PIC on a B747 once he was 60, and directed the respondent's attention to its policy (see [7] above). The appellant invited the respondent to bid for one of a limited number of positions not affected by the age restrictions as an alternative to mandatory retirement. It was made clear that if the respondent was not appointed to one of these positions his employment would conclude once he turned 60. The letter invited the respondent to talk the issues over with his family and colleagues and to seek appropriate advice. [10] Over the following months there were some communications between the parties, in the course of which the respondent advised the appellant that it was not his intention to retire. No progress was made towards agreement, however. On 18 February 2004 the respondent, who by this time had taken legal advice, wrote to the appellant setting out his position. In this letter the respondent: (a) Reiterated his intention not to retire; (b) Said that he considered that the choice with which he was faced (dismissal or demotion) was unlawful and discriminatory; (c) Accepted that the ICAO standard placed operational restrictions on the appellant; (d) Indicated that he considered that a reasonable accommodation could be reached, which would enable him to continue as a flight instructor while the appellant would continue to meet the restrictions imposed by the ICAO standard. [11] The appellant was concerned to clarify the position in relation to the qualifications to be a flight instructor and so wrote to the FAA. In its response theFAA confirmed that a flight instructor could not act as a PIC of an aircraft flying into the United States or through its airspace if the instructor had reached the age of 60. [12] Then, on 9 July 2004, the appellant wrote to the respondent setting out its position in some detail. It noted that the respondent's position as a flight instructor was dependent on the respondent being current as a PIC on the B747. The letter stated that the combined effect of the international restrictions and the appellant's policy was that, once the respondent turned 60, he could not act as a PIC in the B747 fleet. It emphasised that there were other roles within the company that were not affected in that way. The letter acknowledged the respondent's view that his case needed to be considered individually given that he held the position of flight instructor. However, it said that because the respondent could not remain current as a PIC (because he could not fulfil the required route and airport proficiency checks while subject to the international restrictions) he could not continue to hold his flight instructor privileges. [13] The letter summed the position up as follows:In your circumstances, and leaving aside the regulatory issues, once you turn 60: 1. Your unencumbered flying would be limited to the Tasman and this is not reflective of the Company's operations as a whole. This may also require interference with the bidding rights for other pilots and pre-assignments for fellow standards pilots. 2. You would not be able to train or check any pilot as pilot-in- command, except on a limited number of routes. 3. The Company would not have the flexibility of being able to roster TODs where you could be used as pilot-in-command for certain sectors or pilot-in-command in the event of sickness of the pilot-in- command or in a disrupt situation. You would also not, in all circumstances, be able to designate yourself as pilot-in-command when considered necessary in the interest of safety. All of the above has led me to the conclusion that if you do wish to retain an instructing role on the 747 then this would need to be limited to a simulator instructor position. ... To summarise, on your attaining age 60, you will no longer be able to remain as pilot-in-command on the 747 and as a result will also be unable to maintain the privileges of flight instructor on that aircraft.The letter concluded by outlining several options for the respondent to consider, and invited him to discuss them. [14] This remained the appellant's position when the respondent turned 60 on 16 September 2004. Accordingly, the respondent lost his position as a flight instructor and as a captain. The respondent then took annual leave. On his return he underwent a training course for transition to the role of B747 first officer, under protest. He then brought a personal grievance against the appellant, on the grounds that the appellant had first, discriminated against him by reason of his age (s 103(1)(c) and s 104(1)(a) and (b) of the ERA) or second, acted unjustifiably to his disadvantage (s 103(1)(b) of the ERA). [15] The respondent had been a member of the Federation of Air New Zealand Pilots (the Federation). The respondent resigned from the Federation on 13 September 2004, shortly before his 60th birthday, in order to avoid being contractually bound by a variation to the collective agreement between the Federation and the appellant, concluded in 2005. This variation enabled pilots approaching age 60 to stipulate a position and to be appointed to that position without being required to bid for notified vacancies, as an alternative to retirement.Statutory provisions[16] Section 104(1) of the ERA provides that an employee is discriminated against for the purposes of s 103(1)(c) if his or her employer: by reason directly or indirectly of any of the prohibited grounds of discrimination specified in section 105, (a) refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion and transfer as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or (b) dismisses that employee or subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment; or(c) retires that employee, or requires or causes that employee to retire or resign.Under s 105(1)(i) age is a prohibited ground of discrimination. Section 104(2) provides that "detriment" includes "anything that has a detrimental effect on the employee's employment, job performance, or job satisfaction." [17] We make two preliminary observations about s 104(1): (a) Paragraphs (a) and (b) require a comparison to be made between the treatment of the aggrieved employee and that of other comparably situated employees in order to determine whether the aggrieved employee has been treated differently. Paragraph (c) does not envisage such a process. (b) There is a question as to the reason for the inclusion of the word "indirectly" in the phrase "by reason directly or indirectly". Mr Harrison QC for the respondent said that it is included simply to focus the inquiry on causation and to render inappropriate any subjective approach. In our view, it was intended to refer to the concept of indirect discrimination. Indirect discrimination occurs where apparently neutral requirements or standards operate in a disproportionately negative way in respect of particular groups (such as women or persons of particular ethnic or racial backgrounds). Height restrictions are often given as an example (see Mize "Indirect Discrimination Reconsidered" [2007] NZ Law Review 27 at 28). [18] Section 104 is expressed to be subject to s 106 (s 104(3)). Section 106 provides a number of exceptions to s 104, the most important of which, for present purposes, concerns s 30 of the Human Rights Act 1993 (the HRA). Section 30 deals with exceptions in relation to age. Section 30(1) creates an exception to the prohibition on discrimination in employment in s 22(1)(a) and (d) of the HRA where age as a "genuine occupational qualification" for the relevant position or employment. By virtue of s 106(1)(g) of the ERA that exception also applies inrelation to s 104(1). The effect of s 106(2) is that, for the purposes of the ERA, s 30(1) is to be taken as reading:30 Further exceptions in relation to age(1) Nothing in section 104(1)(a) or section 104(1)(c) shall apply in relation to any position or employment where being of a particular age or in a particular age group is a genuine occupational qualification for that position or employment, whether for reasons of safety or for any other reason.[19] There are two aspects of this provision which, on the face of it at least, are puzzling: (a) The "genuine occupational qualification" exception does not apply to s 104(1)(b). It is not immediately apparent why the exception applies to s 104(1)(a) but not to s 104(1)(b). (b) Paragraphs (a), (b) and (c) of s 104(1) are in materially similar terms to paragraphs (b), (c), and (d) of s 22(1) of the HRA, a section which deals with discrimination in employment matters. Section 22(1)(a) is not replicated in s 104(1), presumably because it addresses a situation where no employment relationship is created (ie, a refusal or omission to employ a person on a prohibited ground of discrimination), so that the ERA is not engaged. The "genuine occupational qualification" exception in s 30 of the HRA applies to s 22(1)(a) and (d) but not to s 22(1)(b) and (c). The result of this is that the exception applies to s 104(1)(a) of the ERA but not to its HRA equivalent, s 22(1)(b). Again, the reason for this is not immediately apparent. We return to these features of the provisions in the discussion below. [20] Finally we mention s 35 of the HRA, which applies to s 104 by virtue of s 106(1)(l). Section 35 provides:General qualification on exceptionsNo employer shall be entitled, by virtue of any of the exceptions in this Part, to accord to any person in respect of any position different treatment basedon a prohibited ground of discrimination even though some of the duties of that position would fall within any of those exceptions if, with some adjustments of the activities of the employer (not being an adjustment involving unreasonable disruption of the activities of the employer), some other employee could carry out those particular duties.Employment Court decision[21] Judge Shaw said that the respondent was employed on an individual employment agreement based on the collective agreement (at [17]). The Judge began by setting out the factual and statutory background. In this context, she described the appellant's rostering arrangements, which she said were "immensely complicated" (at [55]), and recorded the parties' conflicting positions as to whether, within those arrangements, the respondent could be accommodated as a flight instructor. She made no findings on this point, however. The Judge then considered how the respondent's employment should be characterised. She concluded that while the respondent was employed as a pilot, he had been promoted to the grade of a standards pilot holding a qualification as a flight instructor. Accordingly he held a specific position as a flight instructor (at [72]). [22] The Judge went on to consider the respondent's discrimination claim under s 103(1)(c). She noted that the respondent's primary discrimination claim was based on s 104(1)(b), but s 104(1)(a) was relied on in the alternative (at [73]). The Judge identified the critical issue in this context as being "one of causation" (at [77]):Did an act of discrimination lead to the end of [the respondent's] employment as a B747 flight instructor/PIC, or was it for some other reason such as the IAOC/FAA requirements?[23] The Judge then referred to the decision of the High Court of Australia inQantas Airways Limited v Christie (1998) 193 CLR 280, but distinguished it (we discuss this case at [47] – [51] below). Having referred to further authorities, the Judge summarised the position as follows:[86] In summary, therefore, the legal principles which apply to an inquiry into whether there has been an act of discrimination are: (1) There must be a causal link between the detriment to the employee and the prohibited ground of discrimination.(2) The intention of the employer is irrelevant to this consideration where there is prima facie evidence that a decision was, at least in part, based on a prohibited ground. (3) Where there may be more than one reason for an employer's action the test is whether the prohibited ground is a substantial operative factor.[24] The Judge then concluded:[88] On the face of it the question of [the respondent's] age was an express and relevant factor in [the appellant's] decision that he could no longer be a flight instructor or a PIC. The fact that [the appellant] did not intend (and I find that it did not intend) to actively discriminate on the basis of age, does not detract from the fact that but for his age, [the respondent] would not have been limited in the range of flying activities which he could undertake. The effect was that [the respondent] was treated less favourably than younger pilots with his qualifications, skills and in his position. [89] I find that the substantial reason why [the respondent's] position as flight instructor and PIC was downgraded from the time he turned 60 was his age. It was therefore based on a prohibited ground of discrimination.[25] Next the Judge addressed the requirements of paragraphs (a) and (b) of s 104(1), beginning with paragraph (b). The Judge found that the respondent, when compared to his fellow employees, had suffered a "detriment" in terms of s 104(1)(b). Specifically, he had been prevented from carrying out his flight instructor position and had been transferred to the lower paying position of first officer (at [90]). In relation to the comparator group the Judge said:[93] In the present case, the comparison is between a flight instructor/PIC who has reached age 60 and those flight instructors/PICs who are under 60 but are doing the work of the same description that the grievant employee was doing before reaching that age. It is clear that the comparator group has not suffered the same detriment as [the respondent]. They can continue to enjoy the privileges of their position. He cannot. [94] I conclude that [the appellant] has by reason of [the respondent's] age subjected him to detriment which its other employees employed in the same work are not subjected to.[26] As to s 104(1)(a), the Judge found that the respondent had not been offered the same conditions of work. She said that the appropriate comparison was between the respondent's conditions of work after the changes were made by reason of his age and other employees who were not affected by the age restriction. The Judge said:[98] It is unacceptable in principle to compare the characteristics of the grievant employee which he had after the alleged discriminatory act with those of other unaffected employees. [The respondent] only suffered the severe restrictions by reason of a prohibited discriminatory act. The appropriate comparison is between the conditions of work of the employee after the changes made by reason of his age and other employees who were not affected by the age-restriction.On the face of it, therefore, the respondent had suffered discrimination, unless any of the statutory exemptions operated in the appellant's favour. [27] As to the exemptions, the Judge considered that they should be construed narrowly in light of the authorities and the international trend towards eliminating tolerance of age discrimination (at [113]). The relevant exemption here was that relating to "genuine occupational qualification". The Judge rejected the appellant's argument that being under 60 years of age was a mandatory legal qualification for a flight instructor. She said:[121] I accept that [the appellant] developed the age-60 policy in the belief that the external imposition of age-restrictions on PICs in certain territories amounted to an occupational qualification. It did not wish to restrict employment of any of its pilots on the grounds of age but genuinely felt that it had to. However, an objective assessment of the occupational qualifications for a PIC/flight instructor on a B747 contained in the relevant job description and the standards imposed by the [Civil Aviation Authority of New Zealand] shows no relationship to age. The qualifications include rigorous capability testing but age has no part in the occupational qualifications. [122] I acknowledge [the appellant's] position that the limitations on B747 PICs which result from FAA restrictions restrict the extent to which PICs can be rostered but this is, I find, an operational difficulty not an occupational qualification. Indeed, [the appellant's] witnesses accepted that [the respondent's] qualifications were able to be kept current in spite of the restrictions. [123] I am reluctant to find that only statutorily-imposed age-limits could amount to a genuine occupational qualification because there may be circumstances as yet unforeseen where age is such a qualification even though not imposed by statute and such cases may arise in another forum. However, the narrow approach to the construction of exceptions to age- discrimination points to such limits being a valid guideline to an occupational qualification which can be objectively established. This interpretation is also consistent with s 21B of the [HRA]. [124] I conclude that s 30(1) can only provide a justification for age- discrimination under s 104(1)(a) if the age restriction amounted to a genuine occupational qualification. In this case, [the appellant] has not proven on the balance of probabilities that this is the case. A narrow interpretation of thephrase must limit the exception to the occupational qualification. I acknowledge that there are resulting operational and perhaps economic difficulties for [the appellant]. This is the price referred to by Kirby J inChristie of conforming with New Zealand's international obligations.[28] The Judge also found against the appellant in respect of the disadvantage grievance (s 103(1)(b)), on the basis that the appellant had applied a fixed policy to him (the age policy) which, on its face, was discriminatory. The Judge said:[132] In this case [the respondent] was outside the union's agreement with [the appellant] on the age 60 policy and his circumstances were particular to him arising out of his seniority. In the light of these an attempt to accommodate him outside the terms of the policy could have been made. For example, a trial for a period of up to 6 months could have been attempted to test [the respondent's] assertions that he could maintain currency and be accommodated into the roster as a flight instructor without causing undue disruption in spite of his age. [The respondent's] stance on these matters was credible particularly in the light of his management experience in [the appellant] which gave him insights into the operation of the long-haul fleet and its rosters.Issues on appeal[29] This Court granted the appellant leave to appeal on the following questions (at [17]):(a) Did the Employment Court err in law in concluding that the demotion of the respondent from his [Boeing] 747-400 flight instructor position occurred by reason directly or indirectly of a prohibited ground of discrimination, namely his age, in terms of s 104(1) of the [ERA]? (b) Was there any evidence to support the Court's finding at [98] of its judgment? (c) Did the Employment Court err in law in defining as the relevant comparator group for the purposes of ss 104(1)(a) and (b) of the [ERA] those 747-400 flight instructors who are under 60 but are doing work of the same description that the respondent was doing before reaching that age? (d) Did the Employment Court err in law in concluding that being of a particular age (here, under the age of 60) was not a genuine occupational qualification for the respondent's position of or employment as a 747-400 flight instructor, in terms of s 30(1) of the [HRA]? (e) If errors are established arising from (a) to (d), was the Employment Court in error in concluding that the respondent's employment wasaffected to his disadvantage by an unjustified action by the [appellant], namely the [appellant's] policy concerning pilots who had attained the age of 60?[30] The Court identified the first of the questions as the principal issue on the appeal and questions (b) – (d) as being "variations on the theme contained in the first question" (at [13]). As we have indicated at [3] above, we consider that we can best address the appeal by answering question (a). Question (e) is consequential. The parties are agreed that if the appeal succeeds, the matter will have to be remitted to the Employment Court for consideration of the respondent's disadvantage grievance. In those circumstances we need not address question (e).Approach to appeal[31] Rather than going through the questions in turn, we propose to address the issues in the following way. We will begin by making two preliminary points. We then make some general observations concerning discrimination law. Next we will discuss authorities from various jurisdictions which deal with the ICAO/FAA age restrictions. Then we will address the issues that the questions throw up, under three headings. They are: (a) Identification of comparator group for the purposes of s 104(1)(a) and (b). (b) Application of the "by reason directly or indirectly of a prohibited ground of discrimination" requirement in s 104(1). (Like the parties we will refer to this as the "causation issue".) (c) Application of the "genuine occupational qualification" exception in s 30. We acknowledge that there is some artificiality in considering these issues individually as there is some overlap between them. But this approach is necessary to do justice to the detailed submissions of the parties and is in any event the orthodox approach in such cases. We will conclude by giving our answer to what we have identified as the principal question in the appeal.Preliminary points[32] We make two preliminary points. [33] First, with effect from 23 November 2006 the ICAO standard was amended to raise the upper age limit for commercial pilots flying two-pilot aircraft from 60 to 65 years, provided that the co-pilot is under 60. For single pilot operations the limit remains at 60. This change does not, however, change the nature of the issues raised in this case. The logic of the respondent's position, and the Judge's reasoning, is not affected by whether the age limit is 60 or 65. [34] Second, we note that New Zealand and Australia are two of a relatively small number of countries that have no mandatory retirement age for commercial pilots. Provided that a person is able to maintain the necessary technical qualifications and medical certificates he or she is able to act as a commercial pilot. By contrast, most countries have a fixed retirement age for commercial pilots, and increasingly that is becoming 65. That, then, is the international norm.Discrimination law - general observations[35] Prohibitions on discrimination reflect two deeply held values – namely, that people are entitled to be treated: (a) Equally, unless there are legitimate justifications for unequal or different treatment; and (b) On their merits as individuals, rather than on the basis of stereotypes based on their gender, race, age or some other similar characteristic.(i) Statutory basis[36] Prohibitions on discrimination in employment were enacted in New Zealand in s 5 of the Race Relations Act 1971. That section prohibited certain discriminatory conduct in employment "by reason of the colour, race or ethnic or national origins".There was no reference to age. Then came the Human Rights Commission Act 1977. Section 15(1) prohibited discrimination in employment by reason of "sex, marital status, or religious or ethical belief". Again, there was no reference to age. Following that came the Labour Relations Act 1987. Section 210(1)(c) of that Act allowed an employee to bring a personal grievance against his or her employer where the employee had been discriminated against in his or her employment. The grounds were those contained in the Race Relations and Human Rights Commission Acts and, in addition, involvement in union activities (s 211(1)). These provisions were carried over into the Employment Contracts Act 1991 (ECA) (see ss 27 and 28). [37] Age became a prohibited ground of discrimination in employment following the passage of the Human Rights Commission Amendment Act 1992 (see s 3(2) of the Amendment Act). "Age" was (effectively) defined as being between 16 and 65 (s 2 of the Amendment Act). The Amendment Act also introduced the following section into the principal Act (s 6):16A Pilots and Air Traffic Controllers -Nothing in section 15 or section 15B of this Act shall apply to age requirements relating to recruitment, terms of service, or retirement of – (a) Pilots of aircraft within the meaning of the Civil Aviation Act 1990; or (b) Air traffic controllers.Section 22 of the Amendment Act amended s 28(1) of the ECA to include age as a prohibited ground of discrimination. However, it also provided that s 28(1) was to be read subject to various provisions of the Human Rights Commission Act, including s 16A. [38] The HRA consolidated the Human Rights Commission Act and the Race Relations Act, and effected changes to the law. It provided that, with effect from 1 February 1999, there would no longer be an upper age limit for the purpose of the prohibition against discrimination by reason of age (see s 21(1)(i)). The Act contained no equivalent to s 16A. Such a provision was in the Bill as introduced, but was removed at the Select Committee stage. The Committee considered that thisissue could be dealt with under the general notion of "genuine occupational qualification" if an age restriction was justifiable "for reasons of safety or for any other reason" (see Justice and Law Reform Committee The Human Rights Bill(Report 1993) at [2.6]).(ii) General approach - authorities[39] This Court has not previously considered s 104 and the other relevant provisions of the ERA, although it has considered the equivalent (and similarly worded) provisions in the ECA, albeit briefly. In Tranz Rail Limited v Rail & Maritime Transport Union (Inc) [1999] 1 ERNZ 460 the Court said that the breadth of the various expressions in those provisions called "for an expansive, interpretative approach reflecting ... the statutory purpose of proscribing discrimination in employment whatever its actual form so long as it is on one or more of the prohibited grounds" (at [20]). [40] This Court has considered in some detail the right to freedom from discrimination contained in s 19 of the New Zealand Bill of Rights Act 1990 (NZBORA). The leading case is Quilter v Attorney-General [1998] 1 NZLR 523. [41] As the judgments in Quilter reveal, there is a conceptual difficulty concerning the operation of s 19 and in particular, its relationship with s 5 of NZBORA. Section 5 provides that the rights and freedoms in NZBORA "may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Discrimination involves differentiation. Assuming that differentiation on one of the prohibited grounds is established, the conceptual difficulty concerns the point at which the justification for that differentiation is to be taken into account. Does justification have a role to play in determining whether there has been discrimination under s 19 or does it come into play only in the context of s 5 (ie, after a finding of "discrimination" under s 19)? To put the point another way, is a prima facie breach of s 19 established simply by showing that there has been differentiation on the basis of a prohibited ground whatever the justification for that differentiation?[42] Members of the Court in Quilter expressed different views on this issue. Gault J said (at 527):[T]o differentiate is not necessarily to discriminate. It is necessary to distinguish between permissible differentiation and impermissible differentiation amounting to discrimination. This is a definitional question and is to be considered before any issue of the possible application of s 5 of [NZBORA] arises.[43] This is to be contrasted with the approach adopted by Tipping J (at 576): I would prefer to define the right (that is to be free from discrimination) with the purpose of anti-discrimination laws in mind, and then consider whether any suggested limitation is justified or otherwise lawful rather than circumscribe the content of the right at the outset.[44] These competing approaches, which were identified in the White Paper A Bill of Rights for New Zealand (1985) at [10.78], have been described as involving respectively a purposive and a neutral conception of discrimination and have provoked academic debate: see Huscroft "Freedom from Discrimination" in Rishworth and others The New Zealand Bill of Rights (2003) at 375 - 386 favouring the purposive conception of Gault J and Butler & Butler The New Zealand Bill of Rights Act: A Commentary (2005) at [17.9] favouring the neutral conception of Tipping J. [45] This issue does not arise in the same way under the ERA anti-discrimination provisions, however. Section 104 spells out what constitutes discrimination in this context and s 106 provides a series of exceptions. Paragraphs (a) and (b) of s 104(1) refer to comparator groups (broadly, other employees) and require comparison between the treatment of the aggrieved employee and other employees in order to identify whether there has been discrimination on a prohibited ground. Paragraph (c) does not involve a comparative process, however. It requires simply a causal link between the employee's retirement or resignation and a prohibited ground of discrimination. (This indicates that, while resort to a comparator group will frequently be necessary in discrimination cases, it is not an absolute requirement.) But the point for present purposes is that the structure of the ERA anti-discrimination provisions seems to provide less scope for debate about the proper approach to "discrimination".Authorities dealing with ICAO/FAA age restrictions[46] In his submissions for the appellant Mr Waalkens QC said that implementation of the ICAO/FAA age restrictions has been challenged as unjustifiably discriminatory in several jurisdictions but on each occasion the relevant court or tribunal has upheld the implementation of the age restriction. We will now consider some of those authorities, but against the background that caution is necessary. There are two reasons for this. First, the cases have arisen in different statutory contexts, and that affects their relevance. Second, age has emerged as a prohibited ground of discrimination relatively recently. Thinking about age has developed, influenced no doubt by factors such as increased life expectancy, greater knowledge about ageing and its effects and better medical testing techniques. Accordingly, assumptions that might have seemed self-evident previously may no longer be supportable. [47] In Christie (at [23] above) the High Court of Australia considered a challenge to the retirement policy operated by Qantas. This policy was based on the "Rule of 60" in the ICAO standard 2.1.10.1. Qantas employed Mr Christie as a pilot. He captained B747s on international routes. Qantas allocated pilots to flights on the basis of eight-week rosters compiled following a preferential bidding process based on seniority of service. [48] Mr Christie's employment ended when he reached 60. He alleged that his employment had been terminated contrary to s 170DF(1)(f) of the Industrial Relations Act 1988 (Cth), which prohibited an employer from terminating an employee's employment by reason of age. There was an exception if the reason was based on "the inherent requirements of the particular position" (s 170DF(2)). [49] Before the High Court the parties proceeded on the premise that Mr Christie's employment had either come to an end or been terminated by reason of his age. Gaudron J cast doubt on whether age was the reason for his termination as opposed to the occasion for it (at [13]). But the principal focus of the appeal was on the question of the inherent requirements of Mr Christie's position as a B747 pilot flying internationally.[50] Once he was 60 Mr Christie could not fly on many of Qantas' international routes. That meant he could not participate equally with his younger colleagues in the bidding system. While the four Judges in the majority identified the inherent requirements of Mr Christie's position in different terms, all agreed that those requirements had to reflect the international character of his occupation as a pilot. Despite the different formulations, the effective result was that being less than 60 was an inherent requirement of Mr Christie's position. A pilot over 60 could not fly to all, or a reasonable number of, Qantas' overseas destinations and so could not participate effectively in the bidding system. [51] Kirby J dissented, essentially on the basis of the meaning he gave to the word "inherent". To the extent that Mr Christie's ability to participate fully in Qantas' operations was limited, that could be dealt with in the relief ordered. The Judge said that this approach to the legislation was required to place pressure on Qantas to lobby the ICAO and overseas countries to adopt a standard for pilots that was based, not on age, but on "rational criteria freed from stereotyping" (at [165]). [52] The United Nations Human Rights Committee (the Committee) also considered compulsory retirement of airline pilots based on the Rule of 60 inLove v Australia Comm No 983/2001 25 March 2003. The authors of the communication were Australian Airlines' pilots who had been compulsorily retired when they reached the age of 60. All held valid pilot's licences and appropriate medical certificates at the time they were retired. They alleged that their right to non-discrimination under art 26 of the International Covenant on Civil and Political Rights 1966 had been violated. [53] The Committee found that there was no violation of art 26. The Committee accepted that, although age is not one of the enumerated grounds of prohibited discrimination in art 26, age discrimination might nevertheless fall within the scope of the article if differentiation on the basis of age was not based on "objective and reasonable criteria" (at [8.2]). The Committee went on to say:8.3 In the present case, as the State party notes, the aim of maximising safety to passengers, crew and persons otherwise affected by flight travel was a legitimate aim under the Covenant. As to the reasonable and objective nature of the distinction made on the basis of age, theCommittee takes into account the widespread national and international practice, at the time of the author's dismissals, of imposing a mandatory retirement age of 60. In order to justify the practice of dismissals maintained at the relevant time, the State party has referred to the ICAO regime which was aimed at, and understood as, maximising flight safety. In the circumstances, the Committee cannot conclude that the distinction made was not, at the time of Mr Love's dismissal, based on objective and reasonable considerations. Consequently the Committee is of the view that it cannot establish a violation of article 26.[54] There has been extensive litigation about this issue in the United States. There is a useful overview in Dubois "The Age 60 Rule – It is Time to Defeat it!" (2005) 70 J Air L & Com 319. [55] In terms of domestic flights, the FAA introduced the Rule of 60 in 1959. Domestically (and in contrast to the ICAO standard) it applied not only to PICs but also to co-pilots. The FAA said that it introduced the rule for reasons of safety, a claim which Dubois subjects to critical scrutiny and rejects. Despite many court- based challenges, and some judicial expressions of scepticism about the rule and its basis, the courts remained unwilling to intervene. In part this may have reflected the nature of the challenges, but it also seems to have reflected a degree of judicial deference. [56] The amendment of the ICAO standard to raise the age to 65 meant that the United States had to permit pilots aged over 60 employed by foreign carriers to act as PICs on aircraft flying into the United States. The difference between the domestic and the international positions ultimately became untenable, and on 17 December 2007 President Bush signed a Bill raising the retirement age for commercial pilots flying domestically from 60 to 65. In the result, then, both the ICAO and FAA have now adopted an age 65 restriction. [57] As to the Canadian authorities, Mr Waalkens referred us to Re Stevenson and Canadian Human Rights Commission (1983) 150 DLR (3d) 385, a decision of the Federal Court of Appeal. The applicant was a pilot employed by Air Canada. It had a policy which forced its pilots to retire when they reached 60 years of age, a policy which the relevant union had accepted. The applicant, who had been assessed as medically fit to continue as a commercial pilot, was compulsorily retired when heturned 60. He alleged that his employment had been terminated by reason of his age contrary to ss 3 and 7 of the Human Rights Act 1976-77 (Can.) and complained to the Canadian Human Rights Commission. The Commission rejected his complaint, on the ground that the applicant's employment had been terminated because he had reached the normal retirement age for employees in work of that description, which was a statutory exception. [58] The applicant then brought judicial review proceedings challenging the Commission's decision. He argued that the Commission had erred in applying the provisions of the Human Rights Act in a way that infringed his right to equality before the law, guaranteed by s 1(b) of the Canadian Bill of Rights. Specifically, he claimed that the equal protection provision had been breached because persons who reached the "normal retirement age" were required to retire even though capable of continuing to work and so were subject to harsher treatment than those who had not reached that age. The proceedings were dismissed, although the reasoning of the Judges differed in some respects. Mr Waalkens drew to our attention a passage from the judgment of Heald J which emphasised the widespread acceptance of the "Rule of 60" in relation to pilots and the acceptance of it by the union (at 399 – 340). [59] It seems fair to observe that the overseas authorities suggest a reluctance on the part of courts to hold that the ICAO/FAA age restrictions are unfairly discriminatory. [60] Finally we mention two earlier decisions of the Employment Court, Smith v Air New Zealand Ltd [2000] 2 ERNZ 376 and Air New Zealand v Rush Ltd [2003] 2 ERNZ 344. [61] We will not set out the factual background to either case in any detail. In relation to the first, it is sufficient to say that Mr Smith was an Air New Zealand pilot, who flew B747 aircraft and was qualified to act as a PIC. Like the respondent in the present case, he was affected by the ICAO/FAA age restriction when he turned 60 and became involved in a dispute with the appellant. Among other things he alleged age discrimination, relying on s 22(1)(b) and (c) of the HRA.[62] As noted earlier, the s 30 defence of "reasonable occupational qualification" applies to s 22(1)(a) and (d) but not to s 22(1)(b) and (c). To meet this difficulty Air New Zealand argued that the "spirit" of s 30 should be applied in the interpretation of s 22(1)(b) and (c). That is, the concept of an age qualification could be introduced into the analysis under s 22(1)(b) and (c) through the concept of "qualification" in those paragraphs. [63] Judge Colgan rejected that submission (at [95]). He also said that little assistance could be derived from Christie given the different wording of the relevant legislation and the differences in the employment arrangements between the pilots in the two cases. By this latter point, the Judge meant that in Christie the pilot was employed specifically as a B747 pilot whereas in Smith the pilot was employed as a pilot generally (see [100]). There were also differences in the rostering regimes operated by the two airlines (at [102]). The consequence was that on the facts the Judge considered that the appellant could have found alternative work for Mr Smith piloting B733 aircraft, thus meeting its obligations under s 35. The Judge also rejected Air New Zealand's attempt to rely on s 26 of the HRA, which creates an exemption in relation to work performed outside New Zealand (at [106]). [64] The Judge expressed his conclusion on this aspect of the case as follows:[123] [Air NZ's] age 60 pilot policy (insofar as it applied to all pilots in command) and its application to Mr Smith were in breach of s 22(1) [of the HRA]. The employer's actions were not exempted by other sections of that Act. The only justified restrictions that [Air NZ] could lawfully impose were on pilots in command of [B747] services where over 60 year old pilots were, in reality, unable to operate. This did not include B733 pilots in command but [Air NZ's] policy purported to cover them. I am satisfied that s 35 [of the HRA] enabled and obliged the company to adjust its rostering arrangements so as to prevent age discrimination against B733 pilots in command. It did not do so. In addition, implied obligations of fair and reasonable treatment of its employees included an obligation on [Air NZ] not to discriminate against them unlawfully. Those implied obligations of fair and reasonable treatment also required that Mr Smith not be suspended in breach of contract while [Air NZ] formulated its age 60 policy.[65] It appears from this extract, then, that the Judge did accept that the appellant could lawfully impose restrictions on 60 year old PICs of B747s.[66] The Rush case was a sequel to Smith. It concerned the policy developed by the appellant in an effort to meet the requirements of Smith. In Rush Colgan J considered that the new policy had gone much, possibly all, of the way to meeting Air New Zealand's obligations to pilots such as Mr Rush (at [46]). However, it was not applied appropriately to Mr Rush's circumstances. [67] We turn now to the three issues which we identified at [31] above.Comparator group - general(i) Relationship with causation[68] As we have said, the three issues overlap. This is particularly true of the first two issues – comparator group and causation. This is because a comparator group analysis may identify not simply whether there was any difference of treatment between the aggrieved person and the comparator group but also why any different treatment occurred. In other words, it may also address causation. See Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary[2003] 2 All ER 26 at [8] (HL). [69] We noted at [45] above that a comparator group analysis is not always necessary to determine whether an aggrieved person has been discriminated against. The various paragraphs in s 22(1) of the HRA and s 104(1) of the ERA demonstrate this. Some commentators are critical of the role of comparator groups – see, for example, the discussion in McGolgan "Cracking the Comparator Problem: Discrimination, 'Equal' Treatment and the Role of Comparisons" [2006] EHRLR 650. In the present case, however, the provisions relied upon by the respondent do require resort to a comparator group analysis.(ii) Authorities concerning identification of comparator group[70] As to the identification of the relevant group, we will consider two authorities before turning to s 104(1)(a) and (b). The first is Shamoon. The appellant, a woman,was a chief inspector in the Royal Ulster Constabulary (RUC). As part of her duties she was required to act as a counselling officer in performance appraisals for RUC constables. Some constables complained about the way the appellant conducted the appraisal process, and their union made representations to her superior on their behalf. Following this she was removed from her role as a counselling officer. The appellant alleged that she had been discriminated against on the basis of her sex because she had been treated less favourably than two male chief inspectors, who retained their counselling roles. [71] The relevant provisions were articles 3(1)(a) and 7 of the Sex Discrimination (Northern Ireland) Order 1976. Article 3(1)(a) provided that a person discriminated against a woman in any relevant circumstances if "on the ground of her sex he treats her less favourably than he treats or would treat a man". Article 7 provided that a comparison of the cases of persons of different sex for the purposes of article 3(1) "must be such that the relevant circumstances in the one case are the same, or not materially different, in the other." [72] Their Lordships held that the "relevant circumstances" for the purposes of art 3(1)(a) and art 7 had to include the constables' complaints about the way in which the appraisal process was being conducted. The relevant comparator group, then, was a hypothetical one – male chief inspectors against whom similar complaints had been made. The question to be asked was whether the appellant had been treated less favourably than this comparator group (see Lord Hope at [51] – [53] and Lord Hutton at [73] and [80]). Their Lordships concluded that it had not been demonstrated that the appellant had been treated differently. [73] The second case is Purvis v New South Wales (2003) 217 CLR 92. The High Court of Australia considered whether the suspension and exclusion of the appellant, a pupil, from a State high school contravened the Disability Discrimination Act 1992 (Cth). The appellant had repeatedly assaulted teachers and other pupils at school. His violent behaviour was the result of brain damage suffered at birth. By a majority, the Court held that there was no contravention of the Act.[74] Under the relevant provision, a person (the discriminator) discriminated against another (the victim) if, because of the victim's disability, the discriminator treated the victim less favourably than the discriminator treated a person without the disability in the same circumstances. Accordingly it was necessary to identify a comparator group. In addition, "disability" was defined as including "a disorder, illness, or disease that affects a person's thought processes, perception or reality, emotions or judgement or that results in disturbed behaviour." [75] For the appellant it was argued that the comparator group should comprise pupils who did not suffer from the disability (including the disturbed behaviour) from which the appellant suffered. This meant that the comparator group should consist of non-violent pupils. It necessarily followed that because the appellant had been excluded as a result of his violent behaviour, he had been excluded on account of his disability. [76] The majority held that the required comparison was with a pupil who did not suffer from the disability, rather than a pupil who was non-violent. Accordingly, the comparator group was violent pupils whose violent behaviour did not result from a disability (see Gleeson CJ at [11], Gummow, Hayne and Heydon JJ at [223] – [225] and Callinan J at [273]). The minority (McHugh and Kirby JJ) considered that it was wrong to take as the comparator a pupil who did not suffer from the disability but did exhibit violent behaviour. Such an approach would undermine the protection afforded by the legislation in many situations (see especially [129] – [131]). [77] We make three observations about these cases: (a) The relevant legislation in each case required that a comparative approach be taken, and said something about the identity of the comparator group. Plainly, close attention must be paid to the statutory language when identifying the comparator group. (b) The choice of comparator group (or the attribution to it of relevant characteristics or circumstances) was critical in each case. Often itwill effectively determine the outcome of the case (see Shamoon per Lord Hope at [39]). (c) There is an important difference between Shamoon and Purvis. InShamoon there was no suggestion that the prohibited ground of discrimination (gender) gave rise to the other relevant circumstances (the complaints). In Purvis the prohibited ground of discrimination (disability) did give rise to the other relevant circumstances (the violent behaviour). It was this feature that led the minority to dissent.Comparator group - this case[78] We now consider two issues – first, the relationship between the comparator group analysis and the "genuine occupational qualification" justification and second, the identification of the comparator group in this case.(i) Relationship to "genuine occupational qualification" justification[79] As already noted, in the present case the existence of a comparator group is relevant only in respect of s 104(1)(a) and (b). Section 104(1)(c) requires no reference to such a group. Similarly, s 22(1)(b) and (c) of the HRA require the identification of a comparator group whereas s 22(1)(a) and (d) do not. This difference may explain why the "genuine occupational qualification" justification under s 30 is expressed to apply only in respect of s 22(1)(a) and (d) of the HRA (we put the position under the ERA to one side for the moment). Section 22(1)(a) and (d) deal with decisions not to hire, or to fire, on one of the prohibited grounds. The relevant enquiry is a straightforward factual one – was a prohibited ground of discrimination a causally operative reason for the refusal to hire or the decision to fire? If so, there has been discrimination, subject in the case of age to the "genuine occupational qualification" justification in s 30, which is in turn subject to the "reasonable adjustment" limitation in s 35. A comparator group has no part to play in the analysis.[80] In relation to s 22(1)(b) and (c), however, the reference to a comparator group is necessary to determine whether there has been any discrimination, that is, whether the employee has been treated differently in the course of his or her employment to comparable employees, on one of the prohibited grounds. No separate reference to "genuine occupational qualification" is required in this context as, should age genuinely be an occupational qualification, it can be accommodated in the identification of the comparator group. [81] In saying this we appreciate that, as the authorities discussed above show, the usual approach to identifying the comparator group is to do so by reference to the circumstances of the aggrieved person at the time of the alleged discriminationabsent the prohibited ground of discrimination. Put another way, the material difference between the comparator group and the aggrieved individual will be that the latter will have the characteristic (of age or gender, for example) that constitutes the prohibited ground of discrimination. But where age is a genuine occupational qualification, the comparator group for the purposes of s 22(1)(b) and (c) must reflect that, otherwise employers would be held to have discriminated unjustifiably in circumstances where age was a genuine and proper basis for differentiation. If this were not so, an employee could avoid the application of the "genuine occupational qualification" justification by alleging dismissal under s 22(1)(c) rather than enforced retirement under s 22(1)(d) (or, in the ERA context, by relying on s 104(1)(b) rather than s 104(1)(c)), thereby avoiding the application of s 30. It follows from this that we do not agree with Judge Colgan's view in Smith on this point (see [62] – [63] above). [82] This analysis raises a question about s 106(2)(b)(i) of the ERA. For ERA purposes, it substitutes the reference to s 22(1)(a) in s 30 of the HRA with a reference to s 104(1)(a). If the foregoing analysis is correct, that is unnecessary. As with its HRA equivalent (s 22(1)(b)), there is no need for the "genuine occupational qualification" justification in s 30 to apply to s 104(1)(a). It is unnecessary given the court's ability to define the comparator group to incorporate age where that is a genuine occupational qualification in respect of the employee's position or employment.[83] Taking the legislation as it stands, it is difficult to see why s 104(1)(a) should be subject to the s 30 justification when its equivalent in the HRA, s 22(1)(b), is not, or why s 30 should apply to s 104(1)(a) but not to s 104(1)(b). [84] In any event, this is not an issue which we need to resolve in this case, given the approach that we consider should be taken to the identification of the comparator group.(ii) Identification of relevant comparator group[85] The issue to be considered is the identification of the comparator group for the purposes of s 104(1)(a) and (b). Paragraph (a) refers to the employer's failure to afford the employee "the same terms of employment, conditions of work ... as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances." Section 104(1)(b) refers to an employer subjecting an employee "to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be subjected to such detriment." [86] In the present case Judge Shaw said that for the purpose of s 104(1)(a) the respondent received different and disadvantageous terms of work and conditions of employment from his colleagues (at [99]). The detriment for the purpose of s 104(1)(b) was the respondent's inability to continue to act as a flight instructor and his demotion to first officer with its lesser rate of pay (at [90]). [87] As will be apparent, the comparator groups are defined in different terms in paragraphs (a) and (b). One difference is that paragraph (a) refers to the same terms and conditions as "are" made available to other similarly placed employees. On the face of it, if there are no similarly placed employees, no issue arises under the paragraph. Paragraph (b) uses the language "other employees are not or would not be subjected to such detriment". The use of the italicised language recognises that it may be necessary to identify a hypothetical rather than an actual comparator group (see Shamoon especially per Lord Hope at [51] – [52]). It seems improbablethat this distinction in the language is deliberate, and we propose to proceed on the basis the hypothetical comparator approach applies in respect of both paragraphs. [88] Like the Judge below, we will focus on s 104(1)(b) as that was the principal basis of the respondent's claim. Relevantly that paragraph refers to a detriment suffered by an employee in circumstances where other employees employed on work of that description would not be subjected to the same detriment. There is no doubt that the respondent suffered a detriment. But was it a detriment that other employees in the same circumstances would not have suffered? [89] As we have said, we have put to one side any issue about whether being aged less than 60 is a genuine occupational qualification that should be accounted for in the comparative analysis. On this basis, the comparator group must comprise: senior B747 pilots, holding flight instructor positions, who are less than 60 years of age and who are employed on individual contracts. The contentious point is whether these pilots must be: (a) Both technically qualified and able to fly into the United States or through its airspace, as Mr Harrison argued and the Judge accepted; or (b) Unable to fly into the United States or through its airspace, because, although technically qualified, they face some disabling impediment other than age (for example, an inability to meet entry requirements), as Mr Waalkens argued. So the critical point is whether the inability to act as a PIC on a majority of B747 flights (for reasons other than age) should be attributed to the pilots in the comparator group. Putting it another way, the question is whether that feature is part of the relevant circumstances for the purposes of s 104(1)(b). [90] We consider that this feature is part of the relevant circumstances. As inShamoon and Purvis, to reach a true comparison of whether the appellant has discriminated against the respondent in terms of s 104(1)(b) it is necessary to placethe comparator in the same circumstances as the aggrieved person, except for the allegedly discriminatory factor. This permits a focus on the true role of that factor. In this case there are two suggested reasons for the detriment suffered by the respondent – age (the prohibited ground of discrimination) and the flight restrictions that prevent pilots from acting as PICs in certain jurisdictions. The existence of flight restrictions (although not on account of age) must be reflected in the comparative analysis, through the identification of the comparator group. If this factor were to be omitted, the comparator group would consist of pilots who suffered from no operational restrictions, and they would be compared to a pilot who did suffer from an operational restriction. By ignoring a crucial operational difference, the comparison would not be a meaningful one. [91] It is not strained to attribute to the comparator group an inability to fly in United States airspace for reasons other than age. There are other reasons which may prevent pilots under 60 from flying into the United States. We note, for example, that under their employment arrangements, the appellant's international pilots undertake to keep their visas valid (cl 3.3.1 of the 2002 collective agreement). If a pilot was unable to obtain or maintain a valid visa (if one was necessary), or did something which disentitled him or her from entering the United States, he or she would not be able to fly into the United States although technically qualified to do so. Assuming the problem to be more than temporary, if the appellant would have treated such a pilot in the same way as it treated the respondent, it cannot be said, for the purposes of s 104(1)(b), that the respondent has been treated differently on account of his age. [92] By utilising the comparator group which she did, the Judge, in effect, simply took the respondent's position before he turned 60, compared it with his position after he had turned 60 and said that the difference was the result of his turning 60, therefore he had been discriminated against by reason of his age. In a sense that is true – turning 60 undoubtedly was the trigger for what occurred. But such an approach does not accord with the analysis required under s 104(1)(b) and is not sufficient to resolve the issue of liability under that provision. It is an approach more appropriate to s 104(1)(c). Section 104(1)(b) must be interpreted in a way thatenables it to be applied in respect of a variety of grounds of discrimination, most of which do not lend themselves to the approach adopted by the Judge. [93] The same analysis applies under s 104(1)(a). There the comparator group is defined differently (those with "the same or substantially similar qualifications, experience and skills employed in the same or substantially similar circumstances"). But whether through the concept of "qualifications" or through the concept of being employed "in the same or substantially similar circumstances", the analysis must take account of the fact that pilots may be unable to fly into the United States for reasons other than age. [94] The Judge did not approach s 104(1)(a) in this way. Rather, she treated the restrictions on the respondent's ability to fly into the United States as a PIC as resulting from a prohibited discriminatory act of the appellant (see [97] – [98] of her judgment). This is clearly wrong. Those restrictions resulted from the ICAO/FAA rule. [95] Accordingly, we consider that the Judge erred in her identification of the relevant comparator group. That is sufficient to determine the appeal. Nevertheless, we will address the remaining issues."By reason directly or indirectly of any of the prohibited grounds"[96] As we said at [68] above, the comparator group analysis will often answer the causation issue in discrimination cases. In our view, it does so in the present case. Despite that we will comment on the issue. We heard full argument on it, and our views may be of some assistance if this case proceeds further, or in other cases. [97] Did the appellant's treatment of the respondent occur "by reason directly or indirectly of" his age for the purposes of s 104(1)? In one sense it seems obvious that it did, as Mr Waalkens acknowledged. The respondent reaching the age of 60 was the event that led to the appellant taking the steps that it did. But in another sense it seems that the appellant's actions did not result from the respondent turning 60 but rather from the ICAO/FAA restrictions, to which the appellant was obliged toadhere on most of its international routes. In other words, were it not for the ICAO/FAA restrictions, the appellant would not have given any significance to the fact that the respondent turned 60. In the words of Gaudron J in Christie (at [13]), the respondent turning 60 was "the occasion and not the reason" for the termination of his employment as a B747 flight instructor and his redeployment as a B747 first officer. [98] Mr Waalkens was critical of the Judge's reasoning on this aspect of the case. He said that, at the important part of her judgment, the Judge disregarded the ICAO/FAA restriction and focussed simply on the respondent's reaching 60. He said that the Judge was wrong to use the "but for" test (see [88] of her judgment) and noted that the Judge could as easily have said that "but for" the ICAO/FAA restriction the respondent would not have been demoted. Mr Waalkens also criticised the Judge's finding that the substantial reason for the respondent's position as flight instructor and PIC being downgraded from the time he turned 60 was his age (at [89]). This, he said, overlooked the role of the ICAO/FAA age restriction in what happened. [99] Mr Harrison denied that the Judge had failed to address the ICAO/FAA age restriction. He submitted that she had determined, on the basis of the factual material before her, that the real or substantial reason for the respondent's demotion was the fact that he had reached 60, or at least that it was a substantial and operative factor. That was a factual determination, fairly open to her. Mr Harrison said that that was sufficient for liability. The legislation contemplated multiple causative factors. As a result, provided that age was a contributing factor, it did not matter that the ICAO/FAA rules were also a contributing factor. [100] Issues of causation arise in many areas of law. Typically they involve both factual and legal elements. In general (but not always – see the discussion inAccident Compensation Corporation v Ambros [2008] 1 NZLR 340 at [22] and following (CA)), before X can be said to have caused a proscribed outcome a "but for" factual link between X's actions and the proscribed harm must be established. But that alone may not be sufficient. Causation is about attributing responsibility for particular occurrences. The circumstances in which responsibility will be attributedvary to reflect the purpose of the rules imposing liability, as Lord Hoffmann explained in "Causation" (2005) 121 LQR 592. So if the rules imposing liability are based on fault, it will be unfair to impose responsibility on X for proscribed harm not resulting from X's fault even though, as a matter of fact, X did something which was part of the sequence of events leading to the proscribed harm. But that same rationale may not apply where the standard of liability is strict. Thus the consequences for which X is liable may be greater or lesser depending upon the policy underlying the particular rule imposing liability. [101] As the foregoing indicates, establishing causation generally requires a legal analysis. Mr Waalkens urged on us an approach to the language in s 104(1) which reflected the purposive approach to causation that is taken in other areas of the law. He relied in particular on the decision of the Full Court of the Employment Court inTrilford v Car Haulaways Ltd [1996] 2 ERNZ 351, a gender discrimination case brought under s 28(1) of the ECA. Palmer J, delivering a judgment concurred in by the other members of the Court, said that if an apparently discriminatory practice was justified, it would not have occurred "by reason of" one of the prohibited grounds of discrimination (at 374). [102] For his part, Mr Harrison submitted that such an approach to the words "by reason directly or indirectly of" would "emasculate" s 104(1). He said there was a straightforward question of fact to be asked – why did the appellant act as it did? If the respondent's age was a substantial or operative reason, the statutory requirement would be met (see the discussion in McHugh and Kirby JJ's judgment in Purvis at [139] – [166], including their discussion of the English cases). Mr Harrison said that the enquiry had a subjective element, but it was not necessary to establish an intention to discriminate. [103] We consider that, in principle, Mr Harrison is correct in submitting that a straightforward factual enquiry is involved at this stage. As we see it, the structure of the statutory provisions requires such an approach. To take s 104(1)(c) as an example, the ERA provides a justification or defence to a claim under that paragraph where age is a genuine occupational qualification (s 30), but that justification is subject to a "reasonable accommodation" limitation (s 35). A purposive approach tocausation would, at least in some cases (perhaps all), incorporate the genuine occupational qualification justification into the causation analysis. The effect would be to minimise the role of s 30 and exclude consideration of the "reasonable accommodation" limitation. [104] The same applies in respect of s 104(1)(a) and (b). As we have said, we consider that the comparator group assessment allows for the factors addressed by ss 30 and 35 to be considered if appropriate. If a purposive approach such as that advocated by Mr Waalkens were to be taken to causation, the Court would be unable to consider all the relevant factors in this context, particularly those relating to reasonable accommodation. An interpretation which produces that outcome does not, in our view, accord with the objectives of these provisions. [105] It follows from this that we do not agree with the approach taken in Trilford.Genuine occupational qualification[106] Given the views that we have already expressed, it is unnecessary that we deal with this issue in detail. However, we deal with it briefly for the sake of completeness, and in deference to counsel's submissions. [107] Section 30 provides an exception to s 104(1)(c) (and to s 104(1)(a), although in our view unnecessarily) where age is, "whether for reasons of safety or for any other reason", a "genuine occupational qualification" for the "position or employment". The Judge seems to have approached the question of qualifications by referring principally to the requirements imposed by the Civil Aviation Authority, that is, by reference to formal qualifications. Age, she said, played no part in these (at [121]). While the Judge accepted that to be a genuine occupational qualification an age limit did not have to be statutorily imposed (at [123]), she clearly considered that a narrow interpretation should be given to the phrase. [108] Mr Harrison adopted a similar approach in his submissions. He argued that the words "genuine occupational qualification" in s 30 "must be seen as directed at initial entry qualifications for the job as stipulated by the employer, and/or theongoing formal or legally prescribed qualifications for the particular position or employment." [109] We do not agree that the application of s 30 is limited to situations where the formal qualifications for a position contain an age limit. Section 30 refers to age being a genuine occupational qualification "whether for safety or for any other reason". This language is apt to cover a situation such as that dealt with by the Supreme Court of Canada in McKinney v University of Guelph [1990] 3 SCR 229. There the Court considered a challenge under s 15 of the Canadian Charter of Rights and Freedoms (which protects equality rights) to a mandatory retirement age for university staff. By a majority it held that the mandatory retirement age breached s 15 but was justified as a reasonable limit demonstrably justified in a free and democratic society in terms of s 1 of the Charter. One of the reasons for this was that the mandatory retirement age was a quid pro quo for security of tenure, which was necessary to preserve academic freedom. The alternative to a mandatory retirement age was performance based evaluation, and that might have undermined academic freedom by subjecting academics who held controversial views to dismissal on the pretext that they were no longer capable of performing their jobs (especially per La Forest at 282 - 285). Presumably a similar analysis could be applied to mandatory retirement ages for judicial officers, given the need to preserve judicial independence. [110] In the present context, then, we consider that the language of s 30 is broad enough to include situations where age, although not part of the formal qualifications for the activity at issue, is important to the employer's operations as a consequence of legal obligations which the employer has no alternative but to accept. Such a justification could fall within the words "for any other reason". [111] Just how important age is in the context of the employer's operations will determine whether it can properly be regarded as a "genuine occupational qualification". If we assume, for example, that all countries other than New Zealand decided the adopt the new ICAO/FAA standard (the Rule of 65), the effect would be that the appellant could not place pilots aged 65 or more as PICs on any of its international flights. If the consequence was that a B747 flight instructor aged 65 orover could not maintain his or her qualification as a B747 flight instructor, we consider that being less than 65 could properly be regarded as a genuine occupational qualification for that position within the meaning of s 30. The appellant would have no alternative but to meet its international obligations, and that reality should be reflected in the application of s 30. [112] By contrast, however, if we assume some countries enforce the Rule of 65 and some have no relevant age limit, the s 30 issue would be determined by considering the impact of the restrictions imposed by the former group of countries on the appellant's operations overall. It may be that the age limit would still be a genuine occupational qualification, but this would then lead to the question whether any reasonable accommodation was available for the purposes of s 35. [113] We consider that this interpretation of s 30 is consistent with the statutory scheme and best gives effect to the underlying purpose of the anti-discrimination provisions. It is consistent with the approach that the Select Committee seems to have had in mind when it recommended the removal of the pilot exception (see [38] above). If the intention had been to limit the application of s 30 effectively to situations involving statutorily imposed age limits, the section would surely have been worded differently. [114] To summarise, the respondent's position was that of a B747 flight instructor. If, in order to maintain that position, the respondent had to fulfil PIC duties on B747 aircraft and as a practical matter he could not do that as a result of ICAO/FAA age restrictions, we consider that being beneath the relevant age would be a "genuine occupational qualification". We consider that it would be artificial to refuse to recognise the constraints that the ICAO/FAA age restriction places on the appellant in its international operations, particularly as New Zealand is in a minority in not imposing a mandatory retirement age on commercial pilots. In this context the real issue would be whether the appellant could reasonably have accommodated the respondent, given that the restriction did not apply to all areas of the appellant's international operations.[115] As we have said, however, this is not the basis on which we determine the case.Decision[116] As noted above, when it granted leave this Court said that the principal question in the appeal was the first, namely:Did the Employment Court err in law in concluding that the demotion of the respondent from his 747-400 flight instructor position occurred by reason directly or indirectly of a prohibited ground of discrimination, namely his age, in terms of s 104(1) of the Employment Relations Act 2000?The other questions were described as "variations on the theme" of this question. [117] Approaching the matter in that way, our answer to the question is that, having adopted the wrong comparator group, the Employment Court did err in law in reaching its conclusion. In the circumstances we do not propose to give formal answers to questions (b) – (d). We remit the case to the Employment Court for determination of the respondent's disadvantage grievance in light of this judgment. [118] The respondent must pay the appellant costs of $8,000 plus usual disbursements. We certify for two counsel.Solicitors: Shanahan & Co, Auckland for Respondent