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Member of Defence Forces should have utilised statutory redress mechanism

By: Colm Scott Byrne BL

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Court of Appeal allows appeal and overturns order of the High Court, by way of judicial review, declaring that the respondent was qualified for promotion from the rank of Captain to Commandant in accordance with the relevant section of the Defence Force regulations, and a declaration that the appellant was in breach of the Equality Directive, on the grounds that: (a) the respondent was not entitled to the declarations that she had sought as it was not an automatic fixed term promotion but one where there were certain conditions that had to be met prior to qualification for promotion; (b) it was not open to the High Court to make a determination that the respondent was qualified for promotion, in circumstances where such qualification was not automatic; (c) given that the respondent had access to a redress mechanism, the interests of justice do not require her to be permitted to take these proceedings by way of judicial review; and (d) in the absence of utilising that alternative remedy, the respondent was not entitled to apply for a declaration that her rights under the Equality Directive had been breached.

Donnelly J (nem diss): judicial review - the respondent obtained an order by way of judicial review declaring that she was qualified for promotion from the rank of Captain to Commandant in accordance with the relevant section of the Defence Force regulations - the respondent also obtained a declaration that the appellants were in breach of Article 2(2)(c), Articles 14(2) to Article 15 of the Equality Directive - the respondent was subsequently awarded damages for that breach - it was agreed by the respondent that the specific award as to damages would have to be set aside and remitted to the High Court and therefore this was not an issue in the appeal - whether the trial judge correctly held that the respondent was qualified for promotion from the rank of Captain to Commandant - whether the respondent had exercised the statutory remedies available to her - whether the trial judge was entitled to make the declarations he did - The Employment Equality Act 1998 - appeal allowed.

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