The Gazette 1985

GAZETTE

JULY/AUGUST1985

11 p.m. with slightly longer hours on Sundays, while the restaurant is open all day should be taken into consideration. HELD — In the circumstances a liberal interpretation should be given to the Act and the Order of the Circuit Court was affirmed. In the matter of an Application by Michael Glennon and In the matter of Section 6 of the Licensing (Ireland) Act. 1902 as amended by Section 24 of the Intoxicating Liquor Act. 1960 and In the Matter of Section 12 of the Intoxicating Liquor Act, 1927 as amended by Section 8 of the Intoxicating Liquor Act, 1943 - High Court (per McWilliam J.), 13 November. 1984 - unreported. George Bruen EMPLOYMENT LAW Discrimination against Married Women — age limit for appointment — Section 2(c) Employment Equality Act, 1977. The Respondent, up to 1967, had been employed as a permanent Clerical Officer by Sligo County Council, and had been compelled at that time to resign on marriage. From January 1975, she was employed from time to time in a similar capacity by the Appellant but was barred from competing for a permanent appointment because she was over 28 years of age. The Appellant claimed that the entry age limit requirement consti- tuted discrimination against her as a married woman in accordance with Section 2(c) of the Employment Equality Act, 1977, which provides as follows:— "For the purposes of this Act, discrimination shall be taken to occur in any of the following cases— (c) where because of his sex or marital status a person is obliged to comply with a requirement, relating to employment . . which is not an essential requirement for such employment. . . . and in respect of which the proportion of persons of the other sex or (as the case may be) of a different marital status but of the same sex able to comply is substantially higher." The Appellant's claim was upheld by the Equality Officer. The Labour Court determined on appeal, that there was discrimination arising from the fact that the Respondent was not allowed to compete in certain competitions for permanent posts because of her age, and awarded her £3,000.00. The Appellant appealed on a point of law to the High Court against the Labour Court's determination. The Appellant raised 3 points of law:— 1) That the age qualification for appointment was not discrimination within the meaning of Section 2(c) of the Employment Equality Act, 1977;

North Western Health Board (Appellant) -v- Catherine Martyn (Respondent) - High Court (per Barron, J.), 14 December, 1984 - unreported. Caroline Simons LAND COMMISSION Acquisition of Lands — Onus on Land Commission to show that lands are required for Statutory purposes — Land Commission failed to show it acted within its powers. The Appellants ("the objectors"), directors of a Company called Woodland Investments Ltd., acquired 8 holdings in Co. Leitrim as tenants in common. They did so with the intention that Woodland Investments Ltd. would plant the lands with trees and develop the lands as commercial forestry. The lands were certified by the Land Commission as being required for the purpose of resale to the persons or bodies mentioned in Section 31 of the Land Act, 1923 as extended by Section 30 of the Land Act, 1950. Objections were raised to the proposed acquisition by the Land Commission. It was argued that the proposed acquisition was invalid being inspired by bias or improper motive in that the real purpose of the acquisition was to prevent the afforestation by Woodland Investments Ltd. It was also argued that the acquisi- tions were ultra vires the powers of the Land C o mm i s s i on b e c a u se the acquisitions were not yet required for the certified purposes. The objections were disallowed by the Land Commissioners and again by the Appeal Tribunal from which appeal was made to the Supreme Court. HELD by the Supreme Court (Henchy, Hederman, McCarthy J.J.) upholding the objections of the objectors. 1. That the primary condition of the compulsory acquisition is that the lands "are" required (not "will be" required) for the purpose of resale to the specified persons or bodies mentioned in Section 31 of the Land Act 1923 as extended by Section 30 of the Land Act, 1950. Thus, lands must be required at the time the compulsory acquisition takes place. The Land Commission in acquiring the land for resale sometime in the indefinite future had not acted within its powers. The court cited the following cases: Fisher -v- Irish Land Commission and Attorney General [1948] IR 3, The State (Moore) -v- Irish Land Commission [1953] ILTR 150, Irish Land Commission -v- Ulster Bank [1978] IR 429. 2. (Per Henchy and Hederman JJ.) That the fact that the statutory r e a s on f or a c q u i s i t i on was compounded by an ulterior motive did not invalidate the proposed

2) That the Appellant was bound by the direction of the Minister for Health to impose the age qualifica- tion and accordingly was unable to comply with the recommendation of the Labour Court; 3) That the Appellant had brought to Appeal in relation to the question of compensation and that accordingly the Labour Court had no jurisdic- tion to award compensation to the Respondent. HELD: Discrimination within the meaning of Section 2(c) is a mixed question of law and of fact. Where candidates for employment must comply with a requirement which is not essential for that employment it must be established as a matter of fact that the number of those of one sex who can comply is substantially higher than the number of those of the other sex who can also comply, or that the number of those of a particular marital status who can comply is substantially higher than the number of those of a different marital status, but of the same sex who can also comply. There must be evidence and generally this evidence would be statis- tical. The Equality Officer was influenced by the unfairness of the entry age require- ment in relation to married women in the same position as the Respondent. Neither the Equality Officer nor the Labour Court have applied the correct test. The question to be determined is whether or not the entry age requirement comes within the framework of Section 2(c) of the Employment Equality Act, 1977. Married women can only be discrimin- ated against in relation to single or widowed women. The discrimination involving the other sex can only be against women in relation to men, not, for example, married women in relation to married men. Even if the Labour Court had sought to apply the proper test, there is no evidence from which a finding of discrimination would be justified. The Court went on to state that once the Labour Court has ruled that a particular condition of employment is discrimination, the Health Board concerned must be justified in advertising the conditions for appointment without the discriminatory requirement, since Section 3 of the Employment Equality Act, 1977, makes it mandatory that the Employer should not discriminate. In such circumstances, it can no longer be lawful for the Minister to direct that the entry age requirement be retained for that particular position or to refuse to approve the appointment of a candidate selected without reference to such a condition. To suggest to the contrary would enable one Minister to set up a practice of discrimination which another Minister would be obliged, under the provisions of Section 20 of the Employ- ment Equality Act, 1977, to seek to stop.

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