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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;
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.
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
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