Military Employment Law and the Irish Defence Forces incorporating the Independent Review Group[1] (IRG) Report on Military Working Conditions
In recent years, the Irish Defence Forces have encountered a series of formidable challenges. In this article, our Employment team explores a pivotal facet of these challenges: the deficiency of employment rights for members of the Irish Defence Forces. This issue is one of critical significance, particularly in light of the fact that the Defence Forces’ strength has fallen to less than 8,000 personnel in recent years, marking a historic low. Moreover, the unfavorable working conditions within the organization and the lack of legal recourse for its members act as significant deterrents for potential recruits.
[1]https://military.ie/en/public-information/publications/irg-defence-final-report-to-the-minister-for-defence.pdf
Legal Exclusion
The exclusion of members of the Irish Defence Forces from various legal protections, which are granted to other employees, has emerged as a prominent contributing factor to the persistent recruitment and retention crisis within the Defence Forces. These exclusions are a result of specific provisions in Irish law that prevent Defence Forces members from benefiting from several crucial acts and directives, including:- The Organisation of Working Times Act 1997
- This Act outlines statutory rights concerning rest periods, maximum working hours, and holidays.
- The Payment of Wages Act 1991
- This Act governs wage payments to employees and affords them various rights such as the right to receive a pay slip.
- The Unfair Dismissals Act 1977 – 2015
- This legislation defines the law regarding unfair dismissals and provides a means for appealing and questioning the fairness of a dismissal.
- The Employment Equality Acts 1998–2015
- This legislation serves to protect individuals from certain kinds of discrimination, harassment and sexual harassment in the workplace.
- The European Working Time Directive
- This Directive mandates the maximum number of weekly working hours and break requirements.
- It is of note that efforts to amend the law and remove the exclusion of Defence Forces are ongoing currently.
Legal Exclusion Case Study
A notable example displaying the absence of legal recourse for members of the Defence Force is the 2021 Workplace Relations Commission (WRC) case of ‘Gregory Irwin and Irish Defence Forces Naval Service’[2]Case Facts
In this case a 47-year-old man applied for a role as a Radio and Radar Technician in the Irish Naval Service. However the Naval Service had set a maximum age limit of 27 years for this position, leading them to reject his application.
Upon receiving this news the applicant claimed age discrimination and took the case to the WRC.
Legal Arguments
- The Irish Naval Service argued that the WRC lacked jurisdiction due to section 37(5) of the Employment Equality Act 1998, which provides a complete exemption for the Defence Forces in discrimination cases such as this.
- The applicant compared the Naval Service to An Garda Siochana and the Ambulance/Fire service, who would be protected by the Equality Acts and argued that a complete exemption to the Defence forces was unjust.
Verdict
The adjudicator determined that there existed a full exemption from age discrimination complaints in the recruitment process for the Defence Forces[3]. He explained that, in this case, the employer had an absolute exemption from any employment-related concerns, as there was evidently no legislative intent for the Act to encompass the Defence Forces. Furthermore, he clarified that the exemption also did not extend to individuals seeking recruitment into the army who had not yet been hired.
Consequences of this exemption
The implications of this exemption are substantial. Critics argue that the awareness of the absence of employment safeguards and disincentives for Defence Forces management has had an adverse effect on their treatment of members. This viewpoint finds support in a recent 2022 report by the Independent Review Group[4] , which was submitted to the Minister for Defence.
[2] ADJ-00031786 Decision; https://www.workplacerelations.ie/en/cases/2021/august/adj-00031786.html
[3] Referring to precedents such as Cunningham v Irish Prison Service and Smyth v Minister for Defence
[4]https://military.ie/en/public-information/publications/irg-defence-final-report-to-the-minister-for-defence.pdf
Independent Review Group[5] (IRG) Report on Military Working Conditions
What is the IRG review?
The Independent Review Group (iRG) is an autonomous body initiated in 2022 in response to an investigative report by RTÉ in 2021[6], which uncovered instances of abuse within the Defence Forces. The IRG has presented a set of recommendations to the Irish Minister of Defence, among which is the proposal for the creation of a comprehensive statutory inquiry to investigate the controversy thoroughly.
Bullying and Harassment in the Military
According to the findings of the IRG, more than a third of the surveyed members within the Defence Forces reported experiencing harassment and bullying during their service. What’s even more striking is that a significant majority of those who endured various forms of harassment indicated that it was initiated by their superiors within the ranks of the Forces.
In employment law, instances of unresolved harassment, particularly when characterized by a power disparity between the harasser and the victim, are typically viewed unfavorably by Employment Tribunals. However, in the case of military members, they lack access to these tribunals. To compound the issue, some respondents shared distressing and unique accounts of their experiences, which included unjust referrals for psychiatric treatment, unwarranted police visits to their homes based on groundless allegations of unauthorized absence, physical assaults with apparent support from higher-ranking officers (“top cover”), verbal insults, and deliberate obstruction of career opportunities.
Furthermore, many interviewees likened their training experiences to “literal torture” and shared accounts of classmates who tragically died by suicide, and one respondent expressed experiencing “suicidal thoughts” as a result of the harassment they endured.
The gravity of these revelations not only exposes individual transgressions but also emphasizes the systemic issues at play, as they appear to originate from the higher ranks of authority. This also underscores the alarming fact that victims often lack access to independent and external mechanisms for seeking redress following these distressing incidents.
Sexism and Sexual Harassment in the Military
The IRG also acknowledged the historical male dominance within the Defence Forces and highlighted the pressing issue of misogyny, as exemplified by a statement from one interviewee in the report: “At best, the Defence Forces barely tolerate women, and at worst, they subject them to verbal, physical, sexual, and psychological abuse within their ranks.”[7]
The report particularly criticizes the existence of numerous cases of indirect discrimination within the official policies of the military. Indirect discrimination refers to practices that are applied uniformly to everyone but, in practice, disproportionately disadvantage a specific group. This is an issue that would typically be addressed and protected against under the Equality Acts, were it not for an exemption granted to the Defence Forces.
Examples of indirect discrimination disproportionately affecting women, as detailed in the report, include:
- the absence of breastfeeding facilities,
- the inadequacy of uniforms for female personnel, and
- a lack of opportunities for personnel to take parenting leave without harming their future promotion prospects.
The IRG’s investigation further revealed a ‘discernible pattern of rape and sexual assault’[8] within the Defence Forces. It was found that almost 90% of female respondents reported some form of sexual harassment[9], including instances of sexualized language, unwarranted physical contact, invasive questioning about personal relationships and sexuality, indecent exposure, rape, and sexual assault.[10]
The widespread prevalence of sexual harassment is particularly alarming, especially when considering that it is unquestionably made worse by the exemption granted to the Defence Forces. This exemption often restricts external avenues for women seeking redress when facing such discrimination, particularly in cases of gender-based discrimination.
In typical employee-employer relationships, women could lodge complaints with the Workplace Relations Commission, where they can present evidence and seek compensation for the abuse under the Equality Acts. However, women in the Defence Forces do not have this option.
Nevertheless, despite these deeply concerning findings, the IRG has set an ambitious
Target: attaining a comprehensive female participation rate of 35% by 2025. It’s essential to highlight that, as of 2023, female representation in the Defence Forces is at a mere 7.2%. Therefore without drastic and immediate measures, this target appears exceedingly unattainable.
Systemic issues within the Military
The IRG report notably underscores that the described abuses are not isolated incidents. It delivers a scathing critique of the complaint and remedy systems within the Defense Forces, strongly advocating for the establishment of an external channel for members to voice their concerns.
Furthermore, the IRG report points out that while the Defense Forces offer internal grievance processes like the Redress of Wrongs system, Ombudsman for the Defense Forces, Protected Disclosures, and Conciliation and Arbitration Scheme, it reveals a pervasive atmosphere of distrust and unease among personnel. This distrust is rooted in concerns about potential consequences when reporting grievances and is reinforced by a culture that often dismisses gender-related issues as “women’s problems.”
Moreover, the IRG report reveals the concealment of incidents involving bullying and sexual assault, with no official record of sexual harassment cases through the formal complaints process between 2019 and 2021[11].
Despite these systemic issues, many personnel are still unable to access the Workplace Relations Commission (WRC), leaving these flawed internal mechanisms as the primary avenue for addressing employment-related issues.
These findings highlight the urgent necessity for access to an independent review body, such as the WRC, to address issues related to sexual misconduct, bullying, harassment, and discrimination within the Defense Forces. The problems at hand are evidently deeply rooted, necessitating external, impartial expertise for their resolution.
[5]https://military.ie/en/public-information/publications/irg-defence-final-report-to-the-minister-for-defence.pdf
[6] Source; https://www.bbc.com/news/articles/ce743pgw7r0o
[7] Source; https://www.breakingnews.ie/ireland/irish-defence-forces-barely-tolerates-women-review-told-1454861.html
[8] Page 53, IRG Report 2023 see; https://military.ie/en/public-information/publications/irg-defence-final-report-to-the-minister-for-defence.pd
[9] Page 37, IRG Report 2023 see; https://military.ie/en/public-information/publications/irg-defence-final-report-to-the-minister-for-defence.pd
[10] Page 49, 50, 53, 53 IRG Report 2023 see; https://military.ie/en/public-information/publications/irg-defence-final-report-to-the-minister-for-defence.pd
[11] Page 53, IRG Report 2023 see; https://military.ie/en/public-information/publications/irg-defence-final-report-to-the-minister-for-defence.pdf
Is there any legal recourse, beyond criminal law, available to military members when their employment rights are violated?
It’s important to highlight that members of the Defence Forces can pursue an Accident Claim against their employer under the Safety, Health, and Welfare at Work Act 2005 (2005 Act). This legal process, also known as a military injury claim or military negligence claim, allows military service personnel to file a personal injury claim against the Defence Forces for injuries sustained during their service.
The rights of Force members under this Act are similar to those in other workplaces. If an accident occurs that could have been prevented with reasonable care, the injured party may have the opportunity to file a negligence claim. This protection includes claims for mental injuries like post-traumatic stress disorder (PTSD) and physical injuries. However, it’s important to recognize that while this is a viable option, it provides limited legal protection, which may not adequately address many of the issues faced by military members.
Conclusion
In conclusion, it is clear that the lack of employment rights within the Defence Forces is a pressing issue with far-reaching implications. It not only affects recruitment and retention but also results in a culture of abuse and discrimination. Our team at Setanta Solicitors believes that urgent reform is needed to ensure that members of the Irish army are granted the same employment rights and protections as other workers, promoting a safer and more inclusive environment for all.- https://www.breakingnews.ie/ireland/lack-of-employment-rights-impacting-defence-forces-recruitment-crisis-expert-says-1516528.html
- https://www.irishexaminer.com/news/arid-40877246.html
- Sean O’Riordan: What will the Working Time Directive mean for the Defence Forces?
- https://www.irishexaminer.com/news/arid-40877246.html
