Friday 15 December 2017

Army captain excluded from promotion due to maternity leave awarded €800k in High Court

The High Court, Dublin
The High Court, Dublin

Aodhan O'Faolain

A female army captain excluded from a promotions process for the position of Commandant due to being on maternity leave has been awarded €824,794 damages by a High Court judge.

Mr Justice Robert Eagar, who previously held Captain Diane Byrne’s exclusion was in breach of equality implementation requirements of a European Directive, this week assessed damages against the Minister for Defence and State in that sum.

It must have been reasonably foreseeable Ms Byrne would leave the Defence Forces as a result of this discrimination and she was entitled to the damages for loss of earnings, he said.

Her total loss, including pension loss, was calculated at €412,397 and the judge doubled that sum to take into account the award would be taxable, giving a total €824,794.

Ms Byrne, who was nine years in the Defence Forces, has since taken up employment as an engineer with Bord Gais.

In his judgment on her case last year, Mr Justice Eagar said the exclusion from promotion of Captain 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”.

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.

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.

Ms Byrne (39), is 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.

The respondents, he ruled, 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, intended to ensure implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment..

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