In early December 2018 the European Court of Justice (ECJ) handed down its eagerly awaited preliminary ruling in a decade-long age discrimination case relating to the requirement that new entrants to the Irish police service, An Garda Síochána (the Gardaí), be under 35 years old.(1)

Background

Three individuals brought an age discrimination claim before the Equality Tribunal (now the Workplace Relations Commission (WRC)) when they were refused entry into the Garda Síochána on the basis that they were over 35 years old.

The Irish regulations applicable to the Gardaí provide for an upper age limit of 35 for new entrants to the Gardaí. In this context, the question arose as to whether the WRC had the jurisdiction to disapply a national provision (ie, the regulations) on the basis that they were in contravention of EU equality law. The WRC was asked to deal with this jurisdictional point as a preliminary issue but it refused to do so.

The minister for justice, equality and law reform applied for judicial review in the High Court on the basis that the WRC did not have the jurisdiction to make a decision that would contravene Irish law.

The High Court agreed that the WRC did not have the jurisdiction to commence a hearing that would result in it assuming jurisdiction to overrule national law.

The WRC appealed this decision to the Supreme Court, which considered whether the WRC had the jurisdiction to deal with the matter in the first instance.

The Supreme Court referred a request for preliminary ruling to the ECJ.

The request for a preliminary ruling concerned whether a national body established by law (in this case, the WRC) has the authority to disapply a rule of national law where such rule is contrary to EU law.

ECJ ruling

Previously, only the High Court could disapply national legislation in favour of EU law. In circumstances where all discrimination claims (other than gender) must be initiated in the WRC, this represented a serious bar to justice for claimants seeking to rely on EU law over national law (where there is a conflict of laws) given the costs that are associated with High Court litigation.

The ECJ recently ruled that statutory bodies such as the WRC must have the authority to disapply national law where it conflicts with EU law in order to provide an effective remedy where issues of discrimination are raised pursuant to equality legislation.

What next?

Now that the Supreme Court has obtained the ECJ's ruling on its preliminary question, the matter will revert to the Supreme Court for its appeal decision.

While it is not altogether certain what will happen next, it is likely that the Supreme Court will remit the matter to the WRC for it to decide on the substantive discrimination issue of the claimants in light of the ECJ's ruling that it can disapply the offending regulation if it is in contravention of EU law.

Comment

The ECJ's ruling could have far-reaching implications for all statutory and administrative bodies that are charged with applying EU law and will undoubtedly affect the approach taken by the WRC and Labour Court when similar issues arise.

For further information on this topic please contact Sarah Browne at Mason Hayes & Curran by telephone (+353 1 614 5000) or email ([email protected]). The Mason Hayes & Curran website can be accessed at www.mhc.ie.

Endnotes

(1) Previous article from July 2017 can be accessed here.

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