Irish employment law framework undermined by European decision
There has been a lot of hand-wringing in employment law circles this week as lawyers, administrators and civil servants digest a ruling from the Court of Justice of the European Union (CJEU) that purports to give the Workplace Relations Commission (and by extension the Labour Court) the authority to set aside Irish legislation that is contrary to EU Directives.
How did it all begin?
The decision concerned a decade long Irish age discrimination case which will now go back to the Supreme Court for a final determination. The initial discrimination claims were lodged in the Equality Tribunal (as it was at the time) by three men whose applications to join the Garda Síochána were refused on the grounds that national law (i.e. the Garda Síochána Admissions and Appointments Regulations) had set an upper age limit of 35. The three men alleged that this maximum age limit amounted to discrimination on the ground of age which was prohibited under the Employment Equality Act 1998 and under EU Equality Directives.
How did this end up before the European Courts?
The Equality Tribunal had sought to hear these claims but the Minister for Justice, Equality, and Law Reform argued that the Equality Tribunal did not have the authority to ignore national laws. The Minister initiated High Court proceedings to question the Equality Tribunal’s jurisdiction to disapply the Garda Admission Regulations.
The High Court ruled in favour of the Minister holding that the Equality Tribunal did not have the authority to declare that a national law is inconsistent with EU law. Although the High Court decision was subsequently backed by the Supreme Court, the Supreme Court made a referral to the CJEU on the question of whether the WRC (the successor to the Equality Tribunal) has the authority to set aside national law which conflicts with EU law.
What did the European Court decide?
The CJEU ruled that bodies such as the WRC which are tasked with enforcing EU law (such as EU Equality Directives) must be sufficiently equipped to do so and on that basis they are obliged to adopt all measures necessary to ensure that EU law is fully effective. This obligation includes disapplying any national legislative provisions or case law that are contrary to EU law.
Does that clear the matter up then?
Not just yet. It is still unclear if the WRC could ignore national legislation in a dispute concerning a private sector employer. EU law contains longstanding rules on the “effect” of EU laws in member states. EU Directives typically only have “vertical direct effect” which broadly speaking means that EU Directives are always enforceable against the state or an emanation of the state (such as the Minister for Justice, Equality and Law Reform) but only become enforceable against private sector employers when national legislation has been passed incorporating the EU Directive into domestic law.
Although the Supreme Court referral concerned a dispute with a state body, the CJEU did not expressly address the public sector/private sector distinction. The CJEU’s silence on the issue conceivably leaves the door open for the Supreme Court to confirm that the jurisdiction of the WRC or Labour Court to disapply national laws is limited to claims concerning the state or emanations of the state.
On the other hand, because the CJEU did not make a distinction between public sector and private sector claims, it could be argued that the decision should apply equally to both public and private sector disputes which would represent a significant departure from longstanding rules.
It is hoped that the Supreme Court’s final determination will bring some much needed clarity.
Wasn’t there another landmark EU decision recently?
A separate CJEU decision referred from a German court also examined the public sector/private sector distinction in the application of EU laws. The German case concerned the question of whether or not an employee was entitled to payment in lieu of untaken annual leave when his employment relationship ended. EU Directives prescribe that the employee would always be entitled to a payment in lieu whereas German national law provided that this was only the case where the employee had requested their annual leave. The case concerned a private sector employer and, as already stated, EU Directives are not usually enforceable by private individuals against private sector employers.
The CJEU, however, found that the employee’s rights in respect of annual leave were not only protected by the EU Directive but also by the EU Charter of Fundamental Freedoms. The CJEU noted that the Lisbon Treaty confirms that the Charter has “the same legal value as the Treaties” and the employee was therefore entitled to assert his rights under the Charter/EU Treaties which are enforceable against private individuals in national courts. On that basis it seems that if an employee lodges a claim against a private sector employer and the claim concerns rights protected by the EU Charter of Fundamental Freedoms, the WRC or Labour Court would have jurisdiction to disapply national law.
What happens now?
While the reasoning of the CJEU appears inconsistent with its own previous decisions, what is clear is that the EU and its institutions will always lean on the side of the worker. The CJEU looks set to continue to do its utmost to protect the rights of workers and if the Supreme Court sees fit, Irish employers may face more claims from EU law-savvy employees.
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