Landmark Decision Sees Compensation Cap Set Aside in Discrimination Claim

The Workplace Relations Commission has awarded a job applicant €40,000 for discrimination in a recruitment process. It found that the current statutory cap on compensation of €13,000 for discrimination against job applicants did not provide an effective remedy. The WRC relied on EU law principles to justify awarding compensation beyond the current statutory limit. Our Employment Law & Benefits team examines the background to this landmark decision and explores its likely impact on similar cases.

What you need to know

• The Workplace Relations Commission (WRC) found that the job applicant suffered indirect discrimination in a recruitment process for a job.
• Ordinarily, the maximum compensation for discrimination arising in a recruitment process under the Employment Equality Acts is €13,000.
• The Adjudicator found that the statutory compensation limit conflicted with EU Directive 2000/78, which requires that compensation be effective, proportionate and dissuasive. It therefore awarded a higher amount of €40,000.
• This decision marks a departure from the domestically set compensation limit, and we assess the implications arising from this shift.

The WRC has awarded a job applicant €40,000 in an equality claim, significantly exceeding the current statutory cap on compensation for similar claims of €13,000 under the Employment Equality Acts 1998 – 2015.[1] This decision demonstrates the WRC’s willingness to depart from established national limits and its broad authority to disapply national legislation where it conflicts with EU law.

Background

The job applicant applied for an Irish Sign Language (ISL) advisor role with the National Council for Special Education (NCSE). He was not shortlisted for the role because it was alleged, he lacked an “academic qualification” in ISL, and he did not have oral communication skills. The job applicant made an internal complaint to the NCSE, submitting that the requirement for candidates to hold academic qualifications in ISL, in addition to demonstrating excellent oral communication skills, was discriminatory. The job applicant had native ISL fluency and therefore did not have an academic qualification in the area. He could not communicate orally given his disability.

Internal complaint

The internal complaint was upheld. However, the job applicant was informed that he could not re-apply for the position because the recruitment process had since concluded. The job applicant brought a claim under the Employment Equality Acts. He alleged the requirements that candidates have an academic qualification in ISL and be able to communicate orally constituted indirect discrimination. The job applicant also alleged there were no grounds for objectively justifying these requirements.

The job applicant met the essential criteria for the role. Importantly, even after the job applicant made a complaint and the original decision to reject his application was not upheld, the Adjudicator noted that no remedy was offered, and that the rejection of the application was not overturned. The Adjudicator referred to the Code of Practice for Appointments to Positions in the Civil and Public Service and determined that the original rejection of the application should have been overturned.

Compensation award

When considering redress, the Adjudicator cited the following passage from Article 17 of the Equality Directive:

“The Sanctions which may comprise the payment of compensation to the victim must be effective, proportionate and dissuasive.”

The Adjudicator, without further explanation, ordered the NCSE to pay €40,000 which far exceeds the domestic limit of €13,000 concerning access to employment claims.

Comment

The Adjudicator found the complaint to be well founded. Relying on Article 17 of Directive 2000/78/EC, which requires that sanctions be “effective, proportionate and dissuasive”, the Adjudicator concluded that the existing statutory cap of €13,000 did not satisfy those principles in the circumstances of this case. Accordingly, the NCSE was ordered to pay the applicant €40,000 in compensation.

While previous case law has confirmed that the WRC has the authority to disapply national legislation that conflicts with EU law, and that the principle of EU law supremacy extends to administrative tribunals such as the WRC, this decision marks a significant development. It is the first instance of an award exceeding the statutory cap under the Employment Equality Act. The decision therefore creates uncertainty regarding the continued application of that cap. It remains to be seen whether the matter will be appealed to the Labour Court.

Moving forward, employers should be aware that statutory compensation limits may no longer be fixed, as EU law principles can require more substantial and dissuasive remedies in cases of discrimination.

For more information and expert advice in navigating similar claims under the Employment Equality Acts, contact a member of our Employment Law & Benefits team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] Noel O’Connell v National Council for Special Education ADJ-00042837 / CA-00053343-01