Defence Forces Failure to Update Discrimination Guidance ‘Beggars Belief” Says WRC
A Captain in the Air Corps working at Baldonnell Aerodrome, who suffered discrimination related to her gender, has been awarded the maximum possible compensation in a ruling published today. Yvonne O’Rourke was represented legally by the Irish Human Rights and Equality Commission who have welcomed the ruling as significant.
Alongside the compensation today’s ruling also sees the Defence Forces given deadlines to act to combat pregnancy-related and other discrimination.
Ms. O’Rourke saw her two maternity leave periods classified by the Defence Forces as being the equivalent of sick leave absences of a male officer, which saw her given a poor performance rating for the years 2010 and 2011, which in turn impacted on her ability to secure mandatory training necessary (the Junior Command and Staff Course ‘JCSC’) for promotion to the rank of Commander.
Her complaint of discrimination was raised internally and with the Ombudsman of the Defence Forces, both of which did not uphold the complaint. By the time Ms. O’Rourke was approved by the General Officer Commanding of the Air Corps to attend the JCSC, her health had deteriorated to the point that she was unable to take up the opportunity and was later retired from the Defence Forces on the grounds of ill health.
Initially, the Defence Forces had objected to the Ms. O’Rourke’s legal argument that in order for her to have access to an effective remedy the WRC should disapply the provisions of the Employment Equality Acts relating to members of the Defence Forces in favour of EU law. However, this objection was withdrawn at the very end of the hearing.
The WRC Adjudication Officer describes how the relevant handbook for Defence Forces staff is “remarkable for two details: The provisions on sexual harassment run to a full 1 ½ pages, three times the length of what is has to say on discrimination, and pregnancy related discrimination is not mentioned at all. It seems that, even though women have been serving in the Defence Forces since 1979, the possibility of sexual misconduct exercised senior commanders’ minds much more than the notion that women could be disadvantaged or discriminated against because of pregnancy.”
Alongside the maximum compensation of two years’ salary for the discrimination, plus interest awarded due to the enormous delay caused by the Minister for Defence’s late withdrawal of its objections to a possible disapplication of domestic law, the WRC ruling sets out two actions to be taken forward by the Defence Forces:
- A comprehensive review of training and information materials and local practices to ensure they are in line with anti-discrimination law to be completed by the end of 2021.
- The rolling out of a training course for all Defence personnel with staff responsibilities on the updated anti-discrimination material to be completed by the end of 2022.
Yvonne O’Rourke who took the case stated:
“I hope that what has been achieved in this outcome and determination will shine some light on the areas of darkness that needed to be revealed within the Irish Defence Forces. I hope that this small victory will somewhat; smooth the path, pave the way forward, and inspire those left behind, to have their difficulties, hurts, issues and problems of; discrimination, victimisation, bullying, harassment and sexual harassment heard and subsequently addressed in a more expedient fashion than my seven year struggle.”
Sinéad Gibney Chief Commissioner of the Irish Human Rights and Equality Commission stated:
“Yvonne O’Rourke was treated by the Defence Forces as if she were a man who had been on long-term sick leave rather than as a pregnant woman. This discriminatory perspective was enabled by there being scant reference to discrimination in the Defence Forces handbook and absolutely no reference at all to pregnancy-related discrimination.
“Today’s ruling has unequivocally spotlighted major systems failures in the Defence Forces’ dealings with its personnel who are pregnant or on maternity leave and has shown that discriminatory actions cannot be cured without acknowledging them first.
“The Irish Human Rights and Equality Commission expects the Defence Forces to now act within the given timelines to ensure the necessary information and training are put in place to guarantee women in the forces are not penalised or discriminated against for having children whilst serving their country.”
ENDS/
Notes to Editor
The full decision of the Adjudication Officer in this case is available at the following link:
https://www.workplacerelations.ie/en/cases/2020/december/adj-00007375.html
The Irish Human Rights and Equality Commission
The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.
The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.
Under its legal functions set out in the Irish Human Rights and Equality Commission Act 2014, the Commission can, in certain circumstances, provide legal assistance to a person who wishes to bring a matter of human rights or equality of treatment before the Courts or the Workplace Relations Commission.
Assistance under Section 40 of the Act means any or all of the following
- the provision, or the arranging for the provision of, legal advice to the applicant;
- the provision, or the arranging for the provision of, legal representation to the applicant
- the provision of such other assistance to the applicant as the Commission deems appropriate in the circumstances;