Employment - Damages and restitution - Quantum of damages

The applicant filed an application for Judicial Review seeking a number of reliefs following not being considered (or informed of the formation of a promotion board) for a promotion from the rank of Captain to Commandant while on maternity leave. The Applicant left the army as a direct result. On 25 July 2016, the Barker J made a number of orders sought including:

  1. Declaration that the applicant was eligible for promotion from Captain to Commandant
  2. A Declaration that the Respondents were in breach of Article 2(2)(c), Articles 14(2) to Article 15 of the Directive 2006/54/EC of the European Parliament and that the Council of 5th July, 2006 on the implementation of the principle of equal opportunities and the equal treatment of men and women in matters of employment were breached

The matter was adjourned for the Court to hear submissions on whether the applicant was entitled to damages for loss of earnings. In May 2017, the Court heard evidence of the agreed actuarial reports and it was noted that the applicant had obtained subsequent employment. The total loss of earnings from 28 July 2013 was calculated to include pension losses, loss of earnings and future earnings at a total figure of €412,397.

O’Neill J, held that there had been numerous breaches of the applicants rights to fair procedures and natural justice. Counsel for the respondent argued that it was not reasonably foreseeable that the Applicant would leave her position in the army as a result of not being considered for promotion and that as a result she should only receive damages for the loss caused by her non promotion. The court held that it was reasonably foreseeable that the Applicant would leave the army as a result of being treated differently to her male colleagues.

The Court found that the Applicant was entitled to damages and they doubled the total loss, as the award was taxable and awarded the Applicant €824,794.00.

This article first appeared in Legal Island on 28 July 2017.