At a glance
- In a ground-breaking decision, the Workplace Relations Commission (WRC) has, for the first time, disapplied a statutory cap.
- The WRC found that the statutory limit was inconsistent with the requirement in the EU Directive on Equal Treatment in Employment and Occupation (Equality Directive) for awards to be 'effective, proportionate and dissuasive'.
- As a result, the Claimant was awarded EUR40,000 which is more than three times the usual statutory limit of EUR13,000 applicable to discrimination claims by job candidates.
Background
The Claimant was deaf and his first language was Irish Sign Language (ISL).
The Claimant applied for the position of Advisor Deaf / Hard of Hearing with the National Council for Special Education (NCSE). Candidates were required to hold a qualification in ISL or equivalent. Although he was fluent in ISL, he did not hold an academic qualification. The Claimant advised the WRC that this is common among deaf people. The Claimant was unsuccessful in his application due to his lack of qualification in ISL. The Claimant submitted a request to the NCSE for this decision to be reviewed. The NCSE ultimately communicated to the Claimant that the original decision to reject his application was 'not upheld in this case'; however, no further remedy was offered.
The Claimant filed a claim against the NCSE on the basis that he was discriminated against on the grounds of disability. His position was that he was clearly qualified for the role and would have been successful in the absence of the discriminatory requirement.
Under the Employment Equality Acts 1998 – 2015 (EEA), the statutory cap on awards for claims at recruitment stage is EUR13,000. The Claimant submitted that his losses exceeded EUR13,000 and sought for the WRC to disregard the statutory limit in the EEA. On this point, the Claimant referred to the European Court of Justice decision in Case C‑378/17 Minister for Justice and Equality & Commissioner of An Garda Síochána v. Workplace Relations Commission where it was determined that statutory bodies are obliged to adopt all measures necessary to ensure EU law is fully effective 'disapplying if need be any national provisions or national case-law that are contrary to EU law'.
WRC decision
The WRC found that the NCSE had indirectly discriminated against the Claimant.
In awarding the Claimant an amount in excess of the statutory cap, the WRC relied on Article 17 of the Equality Directive, which states: 'Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive.'
The Adjudicator didn't provide any further explanation in respect of how the level of compensation (EUR40,000) was determined.
It remains to be seen if the matter will be appealed to the Labour Court.
Key takeaways
- The WRC, for the first time, exercised its ability to disapply national provisions it considered to be inconsistent with EU law.
- The decision casts doubt over the enforceability of statutory caps under employment legislation. Beyond the EUR13,000 cap for recruitment-stage claims, there is also a cap of two years' gross remuneration for discrimination claims by employees under the EEA, both of which may now be vulnerable to challenge.
- This case is specific to its facts as in reality, in a majority of cases, it will be difficult for a job candidate to prove they would have been hired but for the alleged discriminatory provision.
- Employers must always carefully scrutinise job criteria to ensure they are not directly or indirectly discriminatory particularly given the cost of non-compliance may now far exceed previous expectations.
