The High Court has found that the Defence Forces could not rely on an under-25 recruitment restriction to exclude Michael Smyth from an army traineeship because the Minister had never formally fixed the date on which the age limit was to apply.
Smyth, born on June 28, 1986, applied online in August 2010 to become a three-star private. He progressed through fitness, medical and vetting stages and was placed ninth on a panel of 14 candidates.
On October 4, 2011, Captain Georgina James telephoned him after approval was received to recruit a platoon of 40. Smyth said he was formally offered and guaranteed a place starting on November 14. James disputed that account, saying the call was intended to confirm continued interest and contact details before formal offers were issued by email.
The following day, after checking his age, James told Smyth he was no longer eligible because he had turned 25.
Ms Justice Dunne accepted that Smyth genuinely believed after the first call that he would receive a place. However, she found that no formal offer had been made and therefore no binding employment contract arose.
The more significant issue concerned the age rule itself. Defence Force Regulations provided that recruits must be aged 17 and under 25 on a date to be determined by the Minister. Evidence showed that the Defence Forces had treated the enlistment date as the relevant date, but no evidence showed that the Minister had ever formally made that determination.
The court held that Irish equality legislation could lawfully exempt Defence Forces recruitment from the normal prohibition on age discrimination. But EU rules required the scope of that derogation to be clearly defined.
Because the Minister had not fixed the relevant date, Dunne J. held that the process needed to make the derogation effective was incomplete. The respondents could therefore not rely on the age restriction against Smyth.
The court did not make final remedial orders in this judgment and instead invited further submissions on their appropriate form.