The Irish Supreme Court has referred to the Court of Justice of the European Union (CJEU) the question of whether the Equality Tribunal, now part of the Workplace Relations Commission (WRC), has the power to decide if the 35-year age limit for joining the Garda Síochána is discriminatory.
The underlying question which gave rise to the proceedings concerned an allegation that the maximum recruitment age for members of An Garda Síochána amounts to unlawful discrimination on the grounds of age, under national and European Union Law. Between 2005 and 2007, each of the applicants applied for and was refused entry to train as members of An Garda Síochána on the basis that the Garda Síochána (Admissions and Appointments) (Amendment) Regulations, 2014 sets the upper age limit for entry as a trainee at 35 years. As a result, the applicants lodged complaints under the Employment Equality Acts 1998 to 2004 with the Director of the Tribunal, alleging discriminatory treatment as regards employment on grounds of age. The Minister for Justice brought judicial review proceedings challenging the authority of the tribunal to hear the case. According to the Minister for Justice the Tribunal did not have jurisdiction to set aside or disapply substantive law and that the Tribunal did not, therefore, have jurisdiction to embark on an inquiry into whether the relevant maximum recruitment age amounted to unlawful discrimination. As a result the Tribunal was requested to direct that a preliminary hearing take place to investigate the jurisdictional issue. The High Court ruled that an equality tribunal did not have the authority to make a binding legal declaration on the inconsistency or insufficiency on a comparison of European and national legislation.
The matter was referred to the Supreme Court, which has to determine whether the Workplace Relations Commission (formerly the Tribunal) had jurisdiction to deal with the matter. Frank Clarke J of the Supreme Court, stated that as a matter of national law, a person or a body exercising statutory power – not being a court established under the Constitution – does not have jurisdiction to commence a process where the only positive conclusion would involve setting aside or disapplying a measure of legislation. On that basis, he concluded that the Workplace Relations Commission (formerly the tribunal) would not, as a matter of national law, have jurisdiction to entertain the complaints of the applicants.
There however remained an issue as to whether EU equality legislation requires the WRC/tribunal, notwithstanding those earlier findings, “must have a jurisdiction to embark on the hearing of these complaints”. Therefore, the Supreme Court decided to refer to the CJEU, under the Treaty on the Functioning of the EU, issues concerning the jurisdiction of the WRC in the context of the equal treatment in employment directive.
Click here for a copy of the judgement.