Justifying Mandatory Age Restrictions in Recruitment

by Lynda Nyhan, Associate on the Employment & Benefits Team, Mason Hayes & Curran

The Supreme Court has referred a long-running age discrimination case to the Court of Justice of the European Union. It must be decided whether the Workplace Relations Commission has jurisdiction to make a ruling regarding the mandatory age bracket of new entrants into the Irish police service. 

The Equality Case
Three individuals, aged between 36 and 48 (the “Claimants”) sought to become members of Ireland’s national police force, An Garda Síochána (the “Gardaí”), but were refused. The Claimants took a case to the Equality Tribunal (the “Tribunal”), which is now the Workplace Relations Commission (the “WRC”).  They claimed that they had been discriminated against on the basis of their age.

In circumstances where Irish regulations dealing with the Gardaí explicitly state that no one over 35 years of age can train to be in the Gardaí, any decision of the Tribunal which found in favour of the Claimants would have been deemed to be in contravention, or inconsistent, with these regulations.

The Tribunal, unlike the High Court, does not have the jurisdiction to make a decision which would be in contravention of Irish law. The Tribunal was asked to deal with this jurisdictional point as a preliminary issue, but it refused.

The Minister for Justice, Equality and Law Reform applied for judicial review in the High Court. The Minister wanted to prevent the Tribunal from proceeding with its investigation into the claims and sought a declaration from the High Court to this effect.

The High Court Case
The High Court determined that the Tribunal was not entitled to commence a hearing that would have the result of assuming jurisdiction to overrule Irish regulations. Even if it was unlawful to apply a statutory age limit for individuals to enter the Gardaí, the High Court held that the Tribunal could not make a binding legal declaration of inconsistency.

The Supreme Court
The Tribunal appealed the decision to the Supreme Court. The Supreme Court did not deal with whether or not the maximum recruitment age to apply for the Gardaí amounted to a breach of equality law. Rather, it was concerned with whether or not the Tribunal had jurisdiction to deal with the matter in the first instance.

The only way the Tribunal could find in favour of the Claimants would be to declare that the rule forbidding them from applying to the Gardaí was unlawful. The Supreme Court ruled that the Tribunal did not have jurisdiction to commence a process where the only positive conclusion would involve setting aside or ‘disapplying’ Irish law.

However, the Supreme Court referred a question to the Court of Justice of the European Union (the “CJEU”) The CJEU had to consider whether EU employment equality legislation requires that the Tribunal must have jurisdiction to investigate, or hear, the complaints.

The Minister argued that EU law does not require that both the courts and statutory bodies are conferred with full jurisdiction to hear equality complaints. There was nothing stopping the Claimants in this case from bringing their case directly before the civil courts in the form of seeking a declaration from the High Court that national law purported to overrule EU law.

Conclusion
Discrimination cases, other than gender discrimination claims, must begin in the WRC. So the question for the CJEU to consider is whether the WRC should have full jurisdiction, including an ability to overrule domestic legislation, if it is inconsistent with EU law. A decision is eagerly awaited.

Equality law and age discrimination is increasingly topical, particularly in relation to recruitment. Employers should always be wary of imposing age restrictions in the workplace. In particular, imposing a restriction at recruitment stage as a bar rendering people over a certain age ineligible from the outset may be very difficult to justify if challenged

About the author

Lynda is an Associate on the Employment & Benefits Team and advises on both contentious and advisory aspects of the employment relationship. Lynda regularly reviews company policies and procedures and advises on disciplinary and grievance matters, redundancy, dismissals and discrimination matters. She also has particular experience advising on managing workplace absence and performance issues.  Lynda regularly represents clients before the Workplace Relations Commission and the Civil Courts on a broad range of employment issues.

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