We have three cases below in today's article.

The first is a CJEU case that includes a referral from the Irish High Court in relation to the blanket retention of details involving telecommunications throughout Ireland under the Data Retention Directive. The CJEU has ruled that the EU legislature acted disproportionately and the Directive is invalid.

The second and third cases involve employment equality issues. The first of those refers to the failure to promote a senior lecturer to a professor position. Our final case involves the dismissal of a truck driver, who claimed the dismissal was discriminatory on grounds of disability.


1. Digital Rights Ireland and Seitlinger and Others [2014] CJEU C-293/12 and C-594/12

Data Retention Directive

The Court of Justice of the EU has ruled that the Data Retention Directive is unlawful in the above joined cases.

The main objective of the Data Retention Directive is to harmonise Member States’ provisions concerning the retention of certain data which are generated or processed by providers of publicly available electronic communications services or of public communications networks. It therefore seeks to ensure that the data are available for the purpose of the prevention, investigation, detection and prosecution of serious crime, such as, in particular, organised crime and terrorism. Thus, the directive provides that the above mentioned providers must retain traffic and location data as well as related data necessary to identify the subscriber or user. By contrast, it does not permit the retention of the content of the communication or of information consulted.

The High Court (Ireland) and the Verfassungsgerichtshof (Constitutional Court, Austria) asked the Court of Justice to examine the validity of the directive, in particular in the light of two fundamental rights under the Charter of Fundamental Rights of the EU, namely the fundamental right to respect for private life and the fundamental right to the protection of personal data.

The Court is of the opinion that, by adopting the Data Retention Directive, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality.

Firstly, the directive covers, in a generalised manner, all individuals, all means of electronic communication and all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. All your legitimate business and private calls are being logged and retained for two years.

Secondly, the directive fails to lay down any objective criterion which would ensure that the competent national authorities have access to the data and can use them only for the purposes of prevention, detection or criminal prosecutions concerning offences that, in view of the extent and seriousness of the interference with the fundamental rights in question, may be considered to be sufficiently serious to justify such an interference.
http://bit.ly/1n7TPEv

Readers with data protection responsibilities in Northern Ireland may wish to note that our update on Data Protection and Social Media, with Ken Macdonald - Assistant information Commissioner for Scotland & Northern Ireland, is on 30 April:
http://www.legal-island.com/data-protection-and-social-media-in-the-workplace-2014


2. A University v A Worker [2014] AD1411 IRLC

Industrial Relations Acts, 1946 to 1990

Section 13 (9), Industrial Relations Act, 1969

The claimant is a senior lecturer in an Irish University. The claimant was shortlisted for a promotion interview for the post of Professor of Physiology. However, prior to the commencement of the interview the claimant had significant concerns that his application would not receive the “fair and objective attention it deserved”. The claimant received one mark less than the successful candidate and filed a grievance which he believed was not acted on and that was the basis of this case.

The rights commissioner found that there was “no evidence that any candidate was specifically disadvantaged by the process”. The claimant appealed to the Labour Court.

The basis of the claimant’s case rested on three issues; firstly that there were inappropriate remarks made prior to the interview by a member of the interviewing panel. The claimant further believed that the closeness of the marks should have resulted in a second interview. Finally, he complained about the failure of the governing body to take his grievance seriously.

The respondent on the other hand stated that the interview process was conducted in a fair and transparent manner, and they must appoint the best candidate for the job. The respondent also noted how it took the claimant twelve months to file his grievance.

The court failed to find any bias and in turn agreed with the decision of the rights commissioner.
http://bit.ly/1jpRFis


3. Stobart (Ireland) Limited v Richard Beashel [2014] EDA1411 IRLC

Industrial Relations Acts, 1946 to 1990

Section 83, Employment Equality Acts, 1998 to 2011

In this appeal from an equality Officer's recommendation, the complainant worked for the respondent until he was dismissed. The complainant claimed that he was discriminatorily dismissed on the grounds of disability.

The complainant was asked to attend a meeting with the operations manager, he was given no reasoning or details as to the purpose of the meeting. At this meeting the complainant was informed that he was dismissed with immediate effect and there was dispute as to the reasons for the dismissal. The complainant argued that he was informed that the reasons for his dismissal surrounded the fact that he had been absent for 23 days; the respondent suggested that the reason for dismissal was a combination of his level of absence and his poor performance levels.

The complainant was suffering from depression, which is a medically diagnosed disability. The complainant argued that the respondent gave “no objective grounds justifying the dismissal at any stage”; added to this he noted how “no reasonable accommodation was offered to him to enable him to discharge his duties while suffering a disability”.

The respondent argued that the complainant was not suffering from a disability but rather from an illness as in order for a disability to be classified as such “it must be probable that it will last for a long time”; founding this submission on the CJEU case of Chacon Navas. It should be noted that the court did not accept this interpretation of the case.

The court noted that whilst the respondent was aware that the complainant was suffering from depression, the respondent had failed to make any inquiries into his condition; the respondent kept itself ignorant of the complainant’s condition. The court held that at a minimum “an employer should ensure that he or she in full possession of all the material facts concerning the employee’s condition”; however it did note that the nature and extent of the enquiries made would depend on individual circumstances of the case.

The court held that, “...given the proximity of the time between the complainant’s diagnosis and the decision to dismiss him the court takes the view that the complainant has established a prima facie case that his dismissal may have been influenced by his disability.” The court therefore held that the complainant was discriminatorily dismissed by the respondent on the grounds of disability; added to this the respondent didn’t provide appropriate measures to allow the complainant to continue in employment. The complainant received €12,000 compensation for the discriminatory treatment he suffered.
http://bit.ly/1lNyoek