This was a preliminary ruling by the Tribunal in relation to complaints of race and religion discrimination made by a ‘reserve member’ of An Garda Siochána. The first preliminary matter was whether the complainant was an ‘employee’. On this point, the Tribunal relied on Section 15(6) of the Garda Siochána Act 2005, as amended by the Section 43 of the Criminal Justice Act 2007, which states that "a reserve member is a volunteer and does not perform his or her functions as such a member under a contract of employment".
The Tribunal took the view that this legislation impliedly amended the earlier Section 2(3)(a) of the Employment Equality Acts, so as to exclude reserve officers from the scope of “employee” within that section. A point not taken by the Tribunal is the extent to which an EU Member State can legislate, after the implementation deadline of EU Directives, to exclude individuals from the personal scope of national, and also EU equality legislation, when there is at least an arguable case that they could be within the personal scope of the Directives.
The second point concerned the issue on whether the prescribed training programme for eligibility as a member of An Garda Siochána, designated as a reserve member, amounts to 'vocational training' as defined by the Section 12 of the Employment Equality Acts. The Tribunal concluded the training programme involved did bring the complaints within Section 12. Two key elements were identified by the Tribunal, namely:
“- Members of An Garda Siochána, designated as reserve members, are not in receipt of remuneration, neither are they deemed to be employees, and therefore, on the balance of probabilities, must have some other reason to undertake the possibly onerous tasks placed upon them
- Experience gained as members of An Garda Siochána, designated as reserve members, must, in accordance with SI 509/2006 - Garda Siochána (Admissions and Appointments)(Amendment) Regulations 2006, be taken into account if/when they apply for a position as a member of An Garda Siochána, not so designated.”
FULL DECISION:
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-040-Full-Case-Report.html
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