The Supreme Court has referred a question to the Court of Justice of the European Union (CJEU) in an appeal over whether the Equality Tribunal could hear age discrimination complaints concerning the maximum age for joining An Garda Síochána as a trainee.
The complaints were brought by Ronald Boyle, Gerard Cotter and Brian Fitzpatrick, who applied between 2005 and 2007 and were refused entry because regulations set the upper age limit at 35. They alleged discrimination under the Employment Equality Acts. The Supreme Court did not decide whether the age limit was discriminatory.
The Minister for Justice and the Garda Commissioner argued that the Tribunal could not disapply the regulations. The High Court agreed in 2009, finding the Tribunal lacked that jurisdiction. The Workplace Relations Commission, which later took over the Tribunal’s functions, appealed that decision. The Minister also cross-appealed the High Court’s refusal to award costs, but that appeal was deferred pending the substantive appeal.
In his judgment delivered on 15 June 2017, Mr Justice Clarke said that under Irish law the Tribunal had no authority to disapply general secondary legislation. He concluded that where a complaint could succeed only if legislation were disapplied, the Tribunal could not lawfully entertain it unless EU law required it to do so. He also said the High Court could hear such a claim and grant any remedy needed to vindicate rights under EU law.
The Court was satisfied that requiring these complaints to be brought in the High Court would comply with EU principles of equivalence and effectiveness. It considered the available court process, including the High Court’s power to grant remedies and require disclosure of evidence, and found that the process would not make enforcement of EU rights excessively difficult.
The remaining question was whether EU employment equality law nonetheless required the Tribunal to have power to hear the complaints and disapply the regulations. The Court said that question was not clear and that an answer was necessary to resolve the appeal. It therefore decided to refer questions of EU law to the CJEU under Article 267 of the Treaty on the Functioning of the European Union.
The judgment explains why the Court supported making the reference and annexes the proposed final reference text. It does not resolve the underlying discrimination complaints or determine the deferred costs cross-appeal.