High Court: Pregnant captain excluded from promotion to commandant awarded over €800k

About this case:

• Judgment:
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In July 2016, the High Court found that Ms Diane Byrne had qualified for fixed period promotion in accordance with the Defence Force Regulations A15, and that Minister for Defence was in breach of equality legislation. In all the circumstances, the Court was satisfied that it must have been reasonably foreseeable that Ms Byrne would leave her employment in the Defence Forces as a result of this discrimination.

Background

In July 2016, the High Court made declarations that:

Assessment of Damages

The Court was presented with agreed actuarial reports, noting that Ms Byrne had subsequently obtained employment as an engineer with Bord Gáis.

The actuarial evidence as to agreed losses was as follows:

Ø pension loss of €378,000;

Ø gratuity loss of €80,484;

Ø current contribution to Gas Networks of €114,000;

Ø past loss of earnings of €436;

Ø overseas duties for future duties of €67,477.

The total loss amounted to €412,397 – Justice Eager explained that as the award would be taxable, the Court should double the figures in order to place Ms Byrne within the net figures.

Counsel for Ms Byrne presented evidence for the purposes of the Court giving an award of general damages.

In this regard, Counsel for Ms Byrne cited the case of P. v. Board of Management of A Secondary School and Health Services Executive IEHC 189. In this case, Justice O’Neill reviewed in detail the conduct of an investigation into a complaint against the plaintiff, finding that “there had been many egregious breaches of the applicant’s rights of fair procedures and natural justice.” He refused, however, to given an order for prohibition, concluding that the balance of justice was in favour of the public interest in the continuance of the investigation into the allegations made.

Justice Eager noted that the applicant in that case had requested Justice O’Neill to have a plenary hearing in relation to the question of damages. In Ms Byrne’s case, no application was made to direct that the proceedings be converted into a plenary hearing – as such, Justice Eager held that the Court would deal with the matter by way of the loss of earnings incurred by Ms Byrne.

Counsel on behalf of the respondents indicated that there has been no mention in the course of the proceedings, or in the papers that Ms Byrne had left the army, and that all that she was entitled to was the loss of earnings occasioned by the failure of the respondent to promote her to the rank of Commandant.

Justice Eager was satisfied that it must have been reasonably foreseeable on the part of the respondents that Ms Byrne would leave her employment in the Defence Forces, in circumstances in which Ms Byrne was excluded from the promotion process as a result of her being on maternity leave, where she was not told that there was a Board being established to consider the issues of promotion, and where she was treated in a different manner to her work colleagues, all of whom were men.

Rejecting any suggestion that this was not reasonably foreseeable; the finding of the Court was that the respondents were in breach of Articles 2, Article 14 (2) and Article 15 of the Directive on the implementation of the principle of equal opportunities and equal treatment of men and women in respect of employment.

In all the circumstances, Ms Byrne was awarded damages for loss of earnings in the sum of €824,794.