In the High Court case of Byrne v Minister for Defence & Ors, the applicant made an application for a judicial review to the High Court due to her being excluded from a promotion process whilst on maternity leave. Generally, discrimination claims of this nature are heard by the Workplace Relations Commission in accordance with the Employment Equality Acts 1998 – 2015. However, the Act prohibits members of the Defence Forces from referring employment related matters to the WRC and the Circuit Court, unless requested by an Officer of the Defence Forces authorised by the Minister.

The Applicant stated that the Respondent failed to promote her from the rank of a Captain to a Commandant due to her being on Maternity leave. She claimed she was entitled to be promoted in May 2013 having completed 9 years’ service in the rank of Captain along with completing several courses.

While the Applicant was on maternity leave, there was an interview process for the role that she was not made aware of. During this process, four of her male colleagues were promoted to a Commandant. Furthermore, during the Applicant’s period of leave, she was transferred to an alternative barrack. The relocation was confirmed without consultation or consent from the Applicant. The Applicant claimed that these actions amounted to unlawful discrimination and breached the provisions of Equal Treatment Directive.

The Respondent argued the Applicant was not eligible for a fixed promotion as she didn’t satisfy all the required criteria of the Defence Force Regulations. The regulations require satisfactory service of 9 years as Captain and the completion of certain training courses. The Respondent argued the Applicant didn’t complete certain courses as required by the Regulations. This decision was made despite the Regulations also stating that the Chief of Staff can determine that an applicant has “otherwise reached a satisfactory standard”. The Court held that this determination would require some form of assessment, which was never carried out for the applicant.

The court granted the declaration and stated the Applicant, who before going on maternity leave was second in command, was entitled to a fixed promotion. They stated the Respondent failed to comply with Defence Force Regulations. They concluded that the Applicant was treated less favourably due to her gender, as she was on maternity leave, and this amounted to unequal treatment as required by Equal Treatment Directive.

As a result of the Applicant qualifying for promotion, the court said she was entitled to damages for loss of earnings. Her total loss of earning was €412,397 which was inclusive of pension loss. The judge doubled her loss of earnings to take into account the fact the award would be taxable, awarding a total of €824,794.

Learning points

• Maternity leave is a protected leave – employees on Maternity or any other protected leave should be treated no less favourably than their comparator employee
• If vacancies arise while an employee is on Maternity leave, the employer is obliged to notify the employee on leave of the vacancy and allow them the opportunity to apply for the position

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