ADJ-00031786

Complainant

Respondent

Parties

Gregory  Irwin

Irish Defence Forces Naval Service

Representatives

  None

Mr Peter Leonard BL instructed by Ms. Lorraine Williams  Chief State Solicitor's Office

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00042049-001

19/01/2021

In October of 2020 the Complainant applied for the role of Radio and Radar Technician within the Irish Naval Service but the Respondent would not accept his application because the age limit was 27 years; the Complainant was 47 years old at the time of application. The Complainant submits he was discriminated against on the grounds of age. The Respondent submits that Section 37(5) of the Employment Equality Act, 1998 (as amended) provides a full exemption to the Defence Forces from the protections which otherwise may be available under the provisions contained within the Act.

Preliminary Jurisdictional Point:

The Respondent submits by way of preliminary objection, that as this claim concerns age discrimination, in accordance with Section 37(5) of the Employment Equality Act 1998 (as amended), the Complainant does not have standing to advance these proceedings.

Section 37(5) of the Act provides that a claim for discrimination on the grounds of age, or disability does not apply to employment in the Defence Forces. Therefore, on the basis that Section 37(5) provides a completely wide-ranging and comprehensive exemption from the provisions of the 1998 Act, the Respondent submits that the Complainant’s complaint cannot be advanced. 

The Respondent submits that on his Complaint form, the Complainant makes a comparison with other State services such as An Garda Síochána and the Ambulance/Fire Service, stating that they do not apply an upper age limits in their recruitment processes. While the Respondent does not comment on any other recruitment process, the Respondent asserts that the Complainant’s attempted comparison with other State services is misconceived and does not reflect the unique statutory provision within the 1998 Act (Section 37(5)) which provides a distinct exemption for the Defence forces.

The Respondent submits that It is acknowledged that in the original 1998 legislation, An Garda Síochána, the Emergency Services and the Irish Prison Service, had an equivalent status to that of the Defence Forces and all were given full exemption from the protections provided under the Act, pursuant to Section 37(6). However, the principal act was amended in 2004 and in the amended legislation two new statutory categories were established. Under the newly drafted provision, Section 37(5), the Defence Forces retained their full exemption status, while An Garda Síochána, The Emergency Services and the Irish Prison Service were placed into a new legislative category, Section 37(3), which provided an exemption on the basis of a requirement to maintain operational capacity.  Section 37(3) provides:

“(3) It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.”

The Respondent submits it is clear that the Oireachtas in amending the 1998 Act, clearly affirmed that the Defence Forces would continue to retain full exemption in respect of age, or disability grounds.

The Respondent cites Cunningham v Irish Prison Service [2020] IEHC 282, wherein Mr Justice Barr had to consider the level of exemption provided to the Irish Prison service under Section 37(3) of the 1998 Act (as amended). This concerned a Prison Officer who was no longer able to engage in control and restraint which was deemed a fundamental aspect of the role. The Respondent submits that it is notable how Barr J compared Section 37(3) and (5) for the purposes of his decision.:  

“While acknowledging that s. 37.3 is a standalone provision, this interpretation is consistent with the provisions of s. 37.2, which effectively establishes in Irish law the three-strand test set out in the European cases referred to above. When read with s. 37.2, s.37.3 gives clarification as to what constitutes an occupational requirement for the purposes of employment in An Garda Síochána, in the Irish Prison Service and in emergency services generally. This can be contrasted with the provisions of s. 37.5, which gives a complete exemption to employment in the Defence Forces. Thus, I am satisfied that the interpretation which the Court has given to s. 37.3, is consistent with the provisions of the section generally, when read as a whole.”

The Respondent submits that as a result of the clear exemption provided in Section 37(5) there is no requirement on the Defence Forces to objectively justify the age limits imposed as part of any recruitment process, or campaign. 

The Respondent further cites Smyth v Minister for Defence [2013] IEHC 110 where the Applicant therein had made the argument that Section 37(5) applied only to personnel who were already in the Defence Forces and not to applicants who were trying to join from outside. However, Dunne J rejected this suggestion. She said:

“I cannot accept this argument. Looking at the provisions of the Employment Equality Act, as amended by the Equality Act implementing Directive 2007/78/E.C, it is, in my view, the clear intention of the Oireachtas that the provisions of the legislation refer not just to the employment of an individual but also the recruitment of an individual. That this is so is clear from s. 8 of the Act of 1998. This is also clear from the terms of the Directive and in particular Article 31A of the Directive. Had the legislator intended that the derogation provided for in the Directive was applicable only to those actually employed in the defence forces, one would have expected such a distinction to be expressly and unambiguously provided for in the legislation. I accept that at some points, the legislation refers specifically to access to employment and to conditions of employment, but I do not accept that the reference to different aspects of employment has the effect contended for on behalf of the applicant. The phrase "in relation to employment in the defence forces" as used in s. 37(5) includes, in my view, access to employment and conditions of employment and there is nothing therein that would lead me to the conclusion that s. 37(5) does not apply to the recruitment of persons to the defence forces.”

Preliminary Jurisdictional Point:

The Complainant submits that he was a very strong candidate for the job but that the Respondent was not willing to consider him purely on the basis of his age. He had the required technical skills and considered himself to be physically fit.  He submits that in all his correspondence with the Respondent he stated that he was more than willing to participate in any interviews, medicals and fitness assessments as deemed necessary. He finds it unacceptable and morally wrong that the Defence Forces can blatantly refuse an otherwise ideal candidate on the basis of age alone, especially given that other State funded organisations do not have any upper age limit at all, even though they are often roles that are physically and mentally demanding, for example the National Ambulance Service and the Retained Fire Service. He does not dispute the legal arguments submitted by the Respondent but wished to make a strong moral point.

 Section 37(5) of the Employment Equality Act 1998 (as amended) refers to complaints taken against the Defence Forces where it states:

“(5) In relation to discrimination on the age ground or disability ground, nothing in this Part or Part II applies in relation to employment in the Defence Forces.”

The Authorities opened to me in this case give guidance as to the interpretation of this section. In the High Court case of Cunningham v Irish Prison Service [2020] IEHC 282,  Barr J had to consider the level of exemption provided to the Irish Prison service under Section 37(3) of the 1998 Act (as amended). However, in a significant reference to Section 37(5) he stated “…This can be contrasted with the provisions of s. 37.5, which gives a complete exemption to employment in the Defence Forces.”

On the argument as to whether Section 37(5) applies only to those and currently in employment and not to potential recruits, Dunne J in the High Court case of Smyth v Minister for Defence [2013] IEHC said:

“I cannot accept this argument. Looking at the provisions of the Employment Equality Act, as amended by the Equality Act implementing Directive 2007/78/E.C, it is, in my view, the clear intention of the Oireachtas that the provisions of the legislation refer not just to the employment of an individual but also the recruitment of an individual. That this is so is clear from s. 8 of the Act of 1998. This is also clear from the terms of the Directive and in particular Article 31A of the Directive. Had the legislator intended that the derogation provided for in the Directive was applicable only to those actually employed in the defence forces, one would have expected such a distinction to be expressly and unambiguously provided for in the legislation. I accept that at some points, the legislation refers specifically to access to employment and to conditions of employment, but I do not accept that the reference to different aspects of employment has the effect contended for on behalf of the applicant. The phrase "in relation to employment in the defence forces" as used in s. 37(5) includes, in my view, access to employment and conditions of employment and there is nothing therein that would lead me to the conclusion that s. 37(5) does not apply to the recruitment of persons to the defence forces.”

 The decisions of the High Court in Cunningham and Smyth give clear guidance on how the section should be interpreted. I conclude that section 37 (5) of the Employment Equality Act (as amended) provides a complete exemption to the Respondent from a complaint on the grounds of age and I therefore find I do not have jurisdiction to hear this complaint.

I conclude that section 37 (5) of the Employment Equality Act (as amended) provides a complete exemption to the Respondent from a complaint on the grounds of age and I therefore find I do not have jurisdiction to hear this complaint.

Employment Equality, Age Ground, Discrimination, Recruitment, Jurisdiction.