The High Court ruled that the Equality Tribunal could not investigate an age discrimination complaint challenging the upper age limit for entry to Garda training because the Tribunal lacked authority to act against the governing regulations.
The judicial review was brought by the Minister for Justice, Equality and Law Reform and the Garda Commissioner against the Equality Tribunal. Three men were notice parties. In a judgment delivered on 17 February 2009, Mr Justice Charleton said the Tribunal could not assume power to overrule a statutory instrument.
The three men applied in 2005 to train as Gardaí when they were aged between 36 and 48. They were told applicants had to be under 35. They complained to the Commissioner and the Tribunal, alleging that the age limit prevented them from entering training because of age discrimination.
The Tribunal’s position arose against a background of concern that the regulations were inconsistent with equality legislation and the European framework directive on equal treatment in employment. The Equality Authority had expressed that view in correspondence. The High Court did not decide whether Irish legislation correctly implemented the directive or whether the age limit was lawful.
The court said the Tribunal’s powers were defined by statute and included remedies such as compensation and orders for equal treatment. But it had no authority to make a binding declaration that national legislation was inconsistent with European law or to disregard the regulations setting the age limit at under 35. The High Court’s constitutional role included that power.
Mr Justice Charleton noted that the 2004 regulations were made after the Equality Act 2004 came into force, and that the Commissioner said the age limit had been set under the existing statutory powers with regard to obligations under that Act. On the papers before the court, the Tribunal was required to accept the regulations as law.
The court held that the Tribunal should have told the complainants it could not provide the remedy they sought and that they would need to apply to the High Court for a declaration concerning any conflict between national and European law. The judgment expressed no view on whether such a challenge would succeed. Its ruling was confined to the Tribunal’s legal authority to proceed.