Employers should note a recent High Court award of €824,000 to former army captain Diane Byrne due to breaches of equal treatment principles. We examine the rationale for this decision and consider why this particular case is noteworthy for employers.

In this case, damages were assessed at €824,000 for loss of earnings. The High Court held that breaches of the principles for equal opportunities, i.e. the requirement for equal treatment of men and women, together with a breach of a contractual and statutory duty led to the failure to promote Diane Byrne who was on maternity leave at the relevant time.

Facts

Diane Byrne (38) was commissioned as an Engineer/Officer with the rank of Lieutenant in 2001. Ms Byrne was part of a group of seven such officers all of whom were commissioned at the time. She was fourth in seniority in the group.

On her appointment she signed a contract, with her appointment being subject to DFR A15, a statutory instrument that expressly included certain conditions including fixed period promotion. As set out in DFR A15, she was duly promoted to the rank of Captain in 2004, on completion of three years’ service in the rank of Lieutenant.

Ms Byrne contended that she and her cohort were due fixed period promotion to the rank of Commandant based on their terms of employment, by May 2013.

In November 2012 Ms Byrne went on maternity leave until September 2013. The four male Engineer Officers in Ms Byrne’s cohort were promoted to the rank of Commandant in August 2013, while Ms Byrne was on additional maternity leave.

Ms Byrne was not promoted with her cohort of Engineer Officers despite her entitlement under DFRA15. In fact Ms Byrne was not notified by her employer of the promotions process at all.

High Court Decision

Justice Eager held that Ms Byrne’s former employer failed to comply with its contractual and statutory duties. The Court further held that there had been breaches of the EU Equal Treatment Directive. Essentially, the case gave rise to less favourable treatment of a woman related to pregnancy or maternity leave which constituted discrimination on the grounds of sex, and her rights to return to her job on no less favourable terms following leave. In assessing the Directive, the court emphasised the need to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment.

In assessing loss of earnings, the Court was satisfied that it must have been reasonably foreseeable on the part of the former employer that Ms Byrne would leave her employment as a result of the exclusion from the promotion process when on maternity leave. On that basis, the court awarded Ms Byrne damages for loss of earnings of €824,000.

A case such as this in the private sector would typically be brought against an employer under the Employment Equality Acts before the Workplace Relations Commission. Compensation under the Employment Equality Acts may be awarded up to two years’ remuneration. The promotion process in this case was determined by rules set out in a statutory instrument and it was the application of those statutory rules to her which enabled Ms Byrne to proceed by way of judicial review in the High Court. This is not a remedy that would be available to private sector employees. Ms Byrne argued, and the High Court agreed, that there had been a breach of the Equal Treatment Directive. Employers in the public sector, where terms and conditions of employment are governed by statutory rules, should take note of this case as an alternative route of pursuing a breach of the Equal Treatment Directive, which could be more appealing to public sector employees who claim to have been discriminated against rather than under the Employment Equality Acts.

This case also highlights the importance of ensuring that any promotion processes apply the principle of equal treatment, by including employees on maternity leave in promotions processes, and by protecting rights of employees returning from maternity leave.