Tuesday 6 December 2016

Female Defence Forces captain excluded from promotion as she was on unpaid maternity leave

Published 25/07/2016 | 19:13

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A FEMALE captain in the Defence Forces was excluded from a promotions process as a result of being on maternity leave in breach of equality implementation requirements of a European Directive, the High Court found.

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The exclusion of Captain Diane Byrne, who before going on maternity leave in late 2012 was second in command of an Air Corps support wing in Baldonnel,  was “not impressive”, Mr Justice Robert Eagar said.

Four male captains in her cohort were promoted in August 2013, unknown to her when she was on additional unpaid maternity leave. Also without her knowledge, she was transferred in late 2012 from Baldonnel to Cathal Brugha Barracks, he noted.

He declared Captain Byrne qualified for promotion to Commandant in May 2013 and was entitled to damages for loss of earnings from that date. The precise sum will be decided later.

He also declared, in the treatment of Captain Byrne, the Minister for Defence and State acted in breach of provisions of Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment.

He was giving judgment on proceedings by Captain Byrne (38), a qualified mechanical engineer who completed a Masters of Environmental Science in 2010.

In May 2001, she was the fourth senior member of a group of seven officers commissioned as an Engineer Officer of the Defence Forces to the rank of Lieutenant.

She claimed her contract of appointment was subject to Defence Force Regulation A15 (DFRA15), and expressly included certain conditions, including fixed period promotion.

Under DFRA15, she was entitled to, and was, promoted with her male colleagues to Captain in 2004.

She claimed she was entitled to be promoted to Commandant in May 2013, having satisfactorily completed nine years service in the rank of Captain by then, plus various courses.

While four of her male colleagues were called before an interview board and promoted in August 2013 (while she was on maternity leave), she was not told of the interview process and unaware they were being promoted.

She also claimed she was wrongly treated during her maternity leave and throughout her pregnancy was subjected to undue stress, resulting in being placed by her doctor on sick leave on several occasions.

In opposing her action, the respondents claimed she was assessed by the Commissioned Officers of Management Office (COMO) and deemed ineligible for promotion to Commandant because she had not completed certain courses.

The judge noted Captain Byrne argued the courses relied on by the respondents were not essential to her duties as an Engineer Officer.

He said DFR A15 requires, for promotion to Commandant, Captain Byrne’s service to date must be satisfactory and there was no suggestion otherwise.

The regulation also required her satisfy an interview board she was suitable for promotion but she was never invited to an interview board. She was also required to have completed a standard course or reached a satisfactory standard.

The respondents, he ruled, had failed to comply with the regulations and their contractual and statutory duties in the treatment of Captain Byrne.

She was not informed of the convening of any board assessing suitability of officers for promotion and given no opportunity to put her case before the Chief of Staff. There was also no legislative basis for the Chief of Staff’s delegation of his role concerning promotions to the COMO.

The failure to inform Captain Byrne of the convening of the board amounted to unfavourable treatment under the “return from maternity leave”

provisions of the 2006 Directive, the purpose of which was to ensure implementation  of the principle of equal opportunities and equal treatment of men and women in matters of employment

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