Age limit on enlistment to Defence Forces had not been properly defined

By: Aoife Budd BL, on April 9, 2013

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High Court grants judicial review of refusal to enlist applicant in the Defence Forces, where he was over 25 years old on the date of enlistment, but had applied when he was 24, on grounds that the Minister for Defence had not adequately defined the appropriate derogation from the age equality legislation.

Employment law – judicial review - Defence Forces – upper age limit for recruitment: age 25 – whether age 25 at date of enlistment is too old – applicant aged 24 at date of application but aged 25 at date of potential enlistment date as three star private – applicant seeking declaration that there was a binding contract when applicant allegedly accepted offer of a traineeship – applicant seeking certiorari of decision to rescind the contract/withdraw offer of traineeship – applicant seeking declaration that the requirement that recruits be under 25 at date of enlistment is unlawful – whether s.37(5) Employment Equality Act 1998 applies to Defence Forces recruitment (ie a permitted derogation from the Act) – no formal offer of traineeship made by respondents - no binding contract was entered into between the parties – Minister has never determined that the relevant date for age limits is the enlistment date – European Directive on Equal Treatment in Employment and Education 2000/78/EC – whether Act and Directive applied if applicant was not yet in employment with respondent – whether a difference between recruitment and employment – clear that the Act and Directive apply to both the employment and the recruitment of an individual – s.37(5) Employment Equality Act 1998 includes recruitment to the Defence Forces: ie a derogation to permit discrimination is allowed re recruitment – whether the scope of the derogation must be clearly defined – Recital 19 of the Directive requires the scope of the derogation to be defined but Minister has never done so – Minister has never defined the relevant date re age restriction - Defence Forces assuming relevant date is date of enlistment: this is of benefit to youngest recruits – respondents cannot rely upon the derogation from the age equality legislation until the scope of that derogation has been clearly defined, namely by the Minister deciding upon the relevant date for the calculation of age restrictions in the Defence Forces – respondents cannot rely upon the derogation against the applicant - hear the parties further upon the appropriate orders to be made.

Quotation from judgment (courtesy of the Courts Service of Ireland):

It is clearly the case that the Minister has never determined the date by which a recruit for general service has to be less than twenty five years of age. It does appear to be the case that members of the defence forces such as Comdt. Norton have operated under the assumption that the relevant date to consider is the date of enlistment but this simply has not been determined by the Minister. Comdt. Norton acknowledged that the use of the date of enlistment is to the advantage of recruits at the lower end of the age requirement. There are many practical reasons for choosing the date of enlistment as the relevant date. For example an applicant may submit an application but if the date of application was the relevant date, there would be no obvious upper age limit in the sense that a person could be entitled to enlist long after they had reached and passed the age of twenty five. Recital 19 of the Directive requires Member States to define the scope of the derogation. In circumstances where the Minister has failed to determine the relevant date, it could not be said that the scope of the derogation has been defined. Until such time as the date is determined by the Minister, one cannot say what is the relevant date. To that extent, it seems to me that whilst the legislation has [been] appropriately implemented in accordance with the Directive and the Defence Force Regulations have provided for an age requirement, the final step, on evidence before me, to be taken to give effect to the derogation is the determination by the Minister of the relevant date and that step has not been taken. In those circumstances it appears to me that there is a difficulty for the respondents in relation to the derogation and they cannot rely upon the derogation against the applicant. The process by which the State can rely on the derogation is incomplete.

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