In a recent case before the High Court, Byrne v Minister for Defence & Ors, a female Army Captain was awarded €824,794 on foot of a 2016 judicial review of the Defence Force’s decision to exclude her from a promotion process. The High Court found that the applicant, Ms. Diane Byrne, was subjected to unlawful discrimination by being excluded whilst on maternity leave. 

Mr. Justice Eagar held that it was reasonably foreseeable that the applicant would leave her employment in circumstances where she was treated in a different manner to her work colleagues, all of whom were men. The treatment of the applicant was deemed to constitute a breach of the 2006 Equal Treatment Directive on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment. This Directive prohibits discrimination on grounds of sex in public and private sectors, including public bodies. In particular, Article 15 provides that a woman on maternity leave shall be entitled to return to her job or to an equivalent post on terms and conditions which are no less favourable.

Ordinarily, discrimination claims are held before the Workplace Relations Commission (the “WRC”) in accordance with the provisions of the Employment Equality Acts 1998 – 2015. However, section 104 of the Acts expressly excludes members of the Defence Forces from referring employment related cases to the WRC or the Circuit Court, unless requested by an Officer of the Defence Forces authorised by the Minister. 

Background

In 2012, the applicant went on maternity leave whist holding the rank of Captain in the Defence Forces. During this time, two Engineer Officers retired, leaving the applicant and four other male Engineer Officers eligible for a fixed promotion. The applicant was not informed of this and therefore she was not given the opportunity to present her case to the interview board. The four male Engineer Officers were subsequently promoted to the rank of Commandant in accordance with the Defence Force Regulations, 1942. Furthermore, during the applicant’s leave, and without her knowledge or consent, she was transferred to an alternative barracks. The applicant claimed that these events constituted unlawful discrimination, contrary to the provisions of the Equal Treatment Directive. 

The respondent claimed that the applicant ought to have pursued her claim through the internal procedure available under section 114 of the Defence Act, 1954. This section sets out the internal Defence Forces mechanism for workplace relations redress. However, the High Court held that a judicial review application was the appropriate course of action as it provided an adequate remedy.  

The respondent further argued that the applicant was ineligible for the promotion by failing to satisfy the criteria of the Defence Force Regulations as incorporated into the applicant’s contract of appointment. Pursuant to the Regulations, satisfactory service of nine years as Captain is required for a fixed promotion to the rank of Commandant. The Regulations also require the completion of certain training courses, which the applicant had not completed. 

Although the applicant had not completed the requisite courses, the Regulations also provide that the Chief of Staff can alternatively determine that an applicant has “otherwise reached a satisfactory standard”. The Court held that this determination would require some form of assessment, which was never carried out for the applicant. 

Conclusion

The amount of €412,397 was calculated as the applicant’s total loss of earnings. This sum included pension loss, gratuity loss and the loss of future overseas duties. As this sum was taxable, Mr Justice Eagar doubled the award in order to place the applicant within the net figures. The applicant has since obtained alternative employment as an engineer with Bord Gáis.

This ruling reminds all employers to ensure they have fair, clear and consistent procedures in place to deal with how employees are rewarded and promoted. 

Contributed by: Catherine O’Flynn

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