THE HIGH Court has ruled that an Equality Tribunal has no power to decide whether the 35-year age limit for joining An Garda Síochána is discriminatory.
The only remedy for three people who had challenged the age limit was to seek a declaration from the High Court that Irish law in relation to the age limit was in conflict with European law, Mr Justice Peter Charleton said.
While the Equality Tribunal, in proposing to inquire into the complaints, had acted from “a proper zeal against age discrimination”, it has no power to make a binding legal declaration on the inconsistency or insufficiency of the age limit on a comparison of European and national legislation, he found.
Such power was “expressly reserved” to the High Court under the Constitution, he said.
His reserved decision arose from a complaint by three men to the Equality Authority claiming the 35-year limit discriminated against them under national and European law.
The Minister for Justice and the Garda Commissioner have argued the rules on age for Garda entry are consistent with both the Equality Act and the EU directive.
The authority appointed an independent tribunal to examine the matter but before any hearing got under way, the commissioner and the Minister asked the tribunal to decide, as a preliminary issue, whether it had the power to deal with the matter.
The tribunal declined and the Minister and commissioner, who have argued the rules on age for Garda entry are consistent with both the Equality Act and the relevant EU directive, brought judicial review proceedings asking the High Court to decide the jurisdictional issue.
In his decision, Mr Justice Charleton said the Minister brought in the new 35-year age limit in November 2004 and the Equality Act had already become law on July 18th, 2004.
The Minister had said the new age limit was in compliance with the Equality Act and the Equality Tribunal was obliged to “accept that as a matter of law”.
The tribunal could not make a ruling in breach of its statutory powers under the Equality Act 1998, he said.
The three complainants, Ronald Boyle (48), Gerard Cotter (39) and Brian Fitzpatrick (39), applied to join the force between 2004 and 2007 and were refused. They then complained to the Equality Authority which referred the issue to a tribunal.
In the High Court proceedings, the tribunal and the three complainants argued the tribunal is entitled to deal with the issue under the employment equality legislation and under an EU directive made in 2000 dealing with the principle of equal treatment under a number of headings, including age.
They also said the tribunal is entitled, within its jurisdiction, to have regard to EU directives in particular where the the complaint is against the State.
To take any other approach would be to allow the Minister and the commissioner as “State actors”, to evade their liability and responsibility under EU law, it was argued.