Sinéad Gibney

Yvonne O’Rourke was represented legally in the Workplace Relations Commission by the Irish Human Rights and Equality Commission, who welcomed the ruling as significant.

Ms O’Rourke, who worked at Baldonnell Aerodrome, saw her two periods of maternity leave classified by the Defence Forces as being the equivalent of sick leave absences of a male officer. This gave her a poor performance rating for the years 2010 and 2011, which in turn impacted on her ability to secure mandatory training necessary for promotion to the rank of commander.

Although she raised a complaint of discrimination internally and with the Ombudsman of the Defence Forces, neither upheld the complaint. She later secured access to the training, but her health had then 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.

In the WRC, the Defence Forces initially objected to 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 However, this objection was withdrawn at the very end of the hearing.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 adjudication officer noted that it was “remarkable” that the relevant handbook for Defence Forces staff had included much more detailed provisions on sexual harassment than on discrimination, and nothing at all on pregnancy-related discrimination.

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:

1. 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.
2. 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.

Sinéad Gibney, chief commissioner of the Irish Human Rights and Equality Commission, said: “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.”