This case involved a 47 year old man who applied to the Irish Naval Service for a role as a Radio and Radar Technician. The Irish Naval Service had set an age limit of 27 years for this position and did not accept his application.
The applicant brought a claim to the WRC (Workplace Relations Commission) on the grounds that he was discriminated against on the grounds of age.
A preliminary objection was raised by the Irish Naval Service which claimed that the WRC could not hear the case for section 37(5) of the Employment Equality Act 1998 provides an exemption to the Defence Forces.
Section 37(5) provides:
(5) In relation to discrimination on the age ground or disability ground, nothing in this Part or Part II applies in relation to employment in the Defence Forces.
The employer argued that this section provided a complete exemption to the defence forces from the provisions of the act as to discrimination on the grounds of age or disability.
The complainant sought to make comparisons with An Garda Siochana and the Ambulance/Fire service. The defence forces argued, however, that whilst an Garda Siochana and the Ambulance/Fire service were in a similar position to the defence forces when the law was first introduced in 1998 the law was changed in 2004 and An Garda Siochana, the Emergency Services and the Irish Prison Service were put in a different legislative category. As a consequence, they have different obligations as to recruitment and avoiding discrimination.
The law had not changed, however, regarding the exemption of the Defence Forces and it remained in place was the argument by the Irish Naval Service.
The applicant argued that he was an extremely strong candidate for the position, had the required technical skills, and was physically fit.
The adjudicator, in arriving at his decision, referred to Cunningham v Irish Prison Service  IEHC 282 and the statement from Barr J referring to section 37(5) that “This can be contrasted with the provisions of s. 37.5, which gives a complete exemption to employment in the Defence Forces.”
The adjudicator was satisfied from this case, and from the Smyth v Minister for Defence , that there was a complete exemption from a complaint on the grounds of age when it came to recruitment. Accordingly, it was found that the WRC was prevented from hearing the case as it simply did not have the jurisdiction and the law was settled and clear.