The Court of Appeal has allowed an Air Corps sergeant’s appeal over his exclusion from a 2019 promotion competition, finding that the General Officer Commanding (GOC) misapplied the eligibility rules for promotion to Flight Sergeant.
The judgment, delivered by Mr Justice Edwards on 17 April 2023, with which Justices Noonan and Faherty agreed, concerns Niall Robinson, a Sergeant and Senior Airborne Radar Operator instructor. He applied for promotion but had not completed a Senior NCO course. The competition rules provided two alternative routes: completing that course, or having reached a satisfactory standard of training certified by the Corps Director.
The GOC declined to certify Mr Robinson as having reached that standard. In a letter, the GOC said it was his policy for personnel to complete the course before promotion, except where service exigencies required otherwise. Mr Robinson was therefore not considered for interview. His complaint through the Defence Forces’ redress process was rejected, and the Ombudsman for the Defence Forces did not uphold his complaint, though the Ombudsman recommended that he be told which aspects of his training were considered inadequate.
Mr Robinson sought judicial review. The High Court refused his application in October 2021. On appeal, the Court of Appeal held that the competition document and administrative instructions set out course completion and satisfactory training as alternatives. They did not limit the training assessment route to cases where service exigencies required it. By treating the absence of the course as decisive and declining to assess whether Mr Robinson met the alternative standard, the GOC misinterpreted the rules, acted beyond his powers and unlawfully fettered his discretion.
The court also found that reliance on service exigencies was an irrelevant consideration under those rules, and that the published criteria created a legitimate expectation of fair consideration under the alternative training route. It rejected the claim that the GOC had been improperly influenced by the Squadron Commander’s views: agreement with those views did not, by itself, establish that the GOC had surrendered independent judgment.
The appeal was allowed, but the Court of Appeal did not itself order an interview, promotion or a place on the order of merit. It invited short further submissions on which relief should appear in the final order. Its provisional view was that Mr Robinson should receive the costs of the appeal and High Court hearing, subject to any submissions from the respondents and later determination of the amount.