The Court of Appeal has allowed the State’s appeal against High Court declarations concerning Diane Byrne’s eligibility for promotion in the Permanent Defence Force and her claim of discrimination under the Equality Directive.
Byrne, a direct-entry engineer officer, was promoted to Captain in 2004. While she was on maternity leave in August 2013, four male Captains in the same class were promoted to Commandant. She was not told about the interview process. After returning from leave, she resigned her commission. She said she left because of the way she had been treated.
The High Court had declared in 2017 that Byrne was qualified for promotion under Defence Force Regulations and that the State breached provisions of the Equality Directive. It also awarded damages, but the parties agreed the damages award would have to be set aside and sent back to the High Court if the substantive appeal did not succeed.
In a judgment delivered on 20 December 2019, Ms Justice Donnelly said promotion for an engineer officer was not automatic after nine years as a Captain. The regulations required satisfactory service, an interview board finding the officer suitable, and completion of specified courses or a determination by the Chief of Staff that the officer had reached a satisfactory standard. Byrne had not completed the courses, and the Court of Appeal said the court could not declare her qualified when the required conditions had not been shown to be met.
The court therefore allowed the appeal against the first two declarations. It did not decide whether the Chief of Staff could delegate eligibility decisions, noting that the Chief of Staff was not a party and that no direct challenge to his decision had been made.
The court also held that a member of the Permanent Defence Force could seek redress under the Employment Equality Act 1998 after making a complaint under section 114 of the Defence Act 1954 and meeting the Act’s procedural requirements. Because Byrne had not used that route before applying for judicial review, the court found she had not established that the alternative remedy was inadequate. It concluded that judicial review was not the appropriate route for her Equality Directive claim and that the High Court’s finding of a breach could not stand.
The appeal was allowed. The judgment did not determine the underlying discrimination claim on its merits.