Ireland

Published in the Irish Employment Law Journal 2025, volume 22 Issue 4, pgs 98-99.  Readers will recall our article in this journal earlier this year¹ on the Opinion of Advocate General Emiliou, in Kingdom of Denmark v European Parliament and Council of the European Union concerning Directive (EU) 2022/2041 on adequate minimum wages in the European Union ("EU") (the "AMW Directive"). On 11 November 2025, the Court of Justice of the European Union ("CJEU") issued its judgment² in which it annuls part of the AMW Directive while confirming the validity of the majority of it. This case was where the Kingdom of Denmark, supported by the Kingdom of Sweden, asked the CJEU to annul the AMW Directive in its entirety, on the grounds that the European Parliament and the Council lacked competency to adopt the AMW Directive. The Law Article 153 of the Treaty on the Functioning of the European Union ("TFEU") provides that the EU shall support and complement the activities of the Member States in certain fields, such as working conditions, representation and collective defence of the interests of workers and employers. However, subs.5 provides that the: "provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs." As its principal head of claim, the Kingdom of Denmark submitted to the CJEU that the AMW Directive directly interferes with the exclusions on pay and the right of association provided for in subs.5 above. The Advocate General's Opinion The Advocate General ("AG") in his opinion stated that as the AMW Directive has as its object the regulation of pay, it directly breached the pay exclusion in art.153(5) of TFEU. However, in relation to the right of association exclusion, the AG did not agree that the right of association equals the right to collective bargaining. The AG rejected the argument that the AMW Directive has as its object the regulation of the right to association. Ultimately, the AG concluded that the European Parliament and the European Council had indeed acted in breach of their jurisdiction by legislating in the area of pay, specifically excluded from the EU's competence and proposed that the entire AMW Directive be annulled on that point. The Judgment The CJEU did not agree with the AG that the entire Directive should be annulled but alternatively decided to annul only part of the Directive. However, it did agree with the opinion of the AG in that the exclusion of the EU's competence by the TFEU in respect of pay and the right of association does not extend to any sort of link with those areas being provided for in EU provisions. It also stated that the exclusion does not cover any measure which, in practice, would have effects or repercussions on the level of pay. The exclusion applies only to direct interference by EU law in the determination of pay and in the right of association. The CJEU referred to a number of decisions in respect of its decision. In respect of art.4, which provides for measures to promote collective bargaining on wage-setting, the CJEU found that it is merely a means of achieving the main objective of the AMW Directive rather than being a distinct purpose of it. Article 4 does not require Member States to reach the threshold of 80 per cent of collective bargaining coverage, but to establish a "framework" of enabling conditions for collective bargaining and draw up an "action plan" to promote such bargaining with the involvement of the social partners. It found that, as art.4 does not oblige Member States to require a larger number of workers to join trade unions or to declare a collective agreement universally applicable, then it does not amount to direct interference by EU law in the determination of pay or the right of association. However, in respect of art.5, the CJEU found that art.5(2) amounted to direct interference by EU law in the determination of pay within the European Union. It found that art.5(2) requires Member States with statutory minimum wages to ensure the use of the four elements listed in that provision in respect of the setting and updating of the statutory minimum wage. Those four elements are: "the purchasing power of statutory minimum wages, taking into account the cost of living"; "the general level of wages and their distribution"; "the growth rate of wages"; and "long-term national productivity levels and developments". The CJEU also found that the portion of art.5(3) which requires that Member States that use an automatic mechanism for indexation adjustments of wages not to decrease the level of statutory minimum wage amounts to a direct interference by EU law in the determination of pay within the European Union. The remaining provisions of art.5 and arts 6 to 8 were found to provide for measures establishing a framework for the setting of adequate minimum wages with a view to improving living and working conditions in the EU and in relation to the scope of "working conditions" and fall within the competence of the EU. Based on the above, the CJEU annulled art.5(2) and the part of the sentence "provided that the application of that mechanism does not lead to a decrease of the statutory minimum wage" in art.5(3) on the ground that those provisions fall within the exclusions of the EU's competences under art.153(5) TFEU. The annulment of art.5(2) necessitated the annulment of the part of the sentence in the fifth sentence of art.5(1) "including the elements referred to in paragraph 2". As the Kingdom of Denmark was successful in part of its application, it was awarded one-third of its costs, but it had to pay two-thirds of the costs of the European Parliament and the Council of the European Union. Conclusion The social parties are delighted with the decision, as it did not have any impact on the promotion of collective bargaining. This is underway in Ireland with the publication of Ireland's Action Plan to Promote Collective Bargaining 2026-2030 in early November 2025. However, the European Union (Adequate Minimum Wages) Regulations 2024 (S.I. No. 633 of 2024), which was enacted in November 2024, amended the National Minimum Wage Act and included the four elements set out in the annulled art.5(2) of the AMW Directive. Therefore, a change in this legislation may be required as this amendment no longer has a valid legal foundation. Irish Employment Law Journal – Volume 22, No.4, 2025 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

Published in the Irish Employment Law Journal 2025, volume 22 Issue 2, pgs 41-42 Advocate General (“AG”) Nicholas Emiliou delivered his opinion on 14 January 2025 in Kingdom of Denmark v European Parliament and Council of the European Union, a recent action concerning Directive (EU) 2022/2041 on adequate minimum wages in the European Union (the “AMW Directive”). The Kingdom of Denmark, supported by the Kingdom of Sweden, asked the Court of Justice of the European Union (the “CJEU”) to annul the AMW Directive, on grounds that the European Parliament and the Council lacked competency to adopt the AMW Directive (C-19/23). Emiliou noted that the European Union (EU) is only allowed to act within the limits of the competences conferred upon it by the Member States and set out in the Treaties, referred to as the “principle of conferral”. The AG considered this principle and the relevant EU legislation in his opinion on the AMW Directive. What is the AMW Directive? The AMW Directive, which was to be transposed into national law in the Member States by 15 November 2024, sets out procedural obligations regarding the adequacy of statutory minimum wages in the EU. This Directive provides that minimum wages are considered adequate if: “they are fair in relation to the wage distribution in the relevant Member State and if they provide a decent standard of living for workers based on a full-time employment relationship”. It was observed that not all workers in the EU are effectively protected by minimum wages and that in particular, this affects women, young workers, low-skilled workers, people with disabilities and migrant workers. Article 5 of the AMW Directive provides that Member States are to be guided by certain criteria in the setting and updating of statutory minimum wages, with the view of achieving a decent standard of living within the EU and reducing in-work poverty. These criteria shall include consideration of the purchasing power of statutory minimum wages, taking into account the cost of living in the Member State and the growth rate of wages. The AMW Directive provides that where more favourable provisions exist in the current national framework, these rights should continue to apply. The AMW Directive states that the Directive is without prejudice to the full respect for the autonomy of the social partners and their right to negotiate collective agreements in the Member State. In addition, Article 4 of the AMW Directive requires Member States to promote collective bargaining on wage-setting. An action plan is required to be established in each Member State where the collective bargaining coverage rate is less than 80 per cent (this includes Ireland). Prior to the current action before the CJEU, the Danish Parliament had already indicated its opposition to the AMW Directive, giving an opinion in December 2020 that, in its view, wage conditions were best regulated at a national level. The Law Article 153 of the Treaty on the Functioning of the European Union (“TFEU”) provides that the EU shall support and complement the activities of the Member States in certain fields, such as working conditions, representation and collective defence of the interests of workers and employers. However, subs.5 provides that the “provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.” As its principal head of claim, the Kingdom of Denmark submitted to the CJEU that the AMW Directive directly interferes with the exclusions on pay and the right of association. The Opinion The AG noted that several instruments have been adopted over the years on the basis of Article 153 TFEU, for example, the recent Directive (EU) 2019/1152 on transparent and predictable working conditions in the EU. However, the AG observed that the current action does not exist in a vacuum, and instead it is linked to a broader perception of “competence creep” by the EU and specifically the Nordic Member States’ opposition to EU actions which they regard as interfering in their labour law. He also notes that the AMW Directive, from a practical perspective, will not affect the national systems in the countries of Sweden or Denmark to any great extent and that one may regard this action as a mere “principled opposition”. However, ultimately, the AG considered the motivations of these countries as irrelevant to the case before him. The AG described the European Parliament as walking on “thin ice” in their interpretation of the pay exclusion in Article 153(5). They argued that pay refers to the level of wages, not procedures for setting wages. However, in the AG’s view, the term “pay” in Article 153(5) is not limited in this way and is intended to cover all aspects of Member States’ wagesetting systems. It was not accepted by the AG that the AMW Directive only imposes procedural obligations. The AG referred to Article 5, which outlines criteria that Member States shall consider when establishing procedures for setting and updating statutory minimum wages and commented as follows: “I do not see how, for example, the obligation contained in Article 5(2)(c) of that directive that the procedure for the setting and updating of statutory minimum wages is to be guided by the growth rate of wages could mean anything other than that the level (amount) of minimum wages must be based on and reflect that growth rate. What is presented as a procedural obligation is, in fact, a substantive obligation in disguise.” The AG also reviewed other relevant Articles of the AMW Directive and submitted that, as it has as its object the regulation of pay, it directly interfered with the pay exclusion in Article 153(5) of TFEU. In relation to the right of association exclusion, the AG was not convinced by the argument of the Danish and Swedish governments that the right of association equals the right to collective bargaining. He commented that these are separate and distinct rights, one being the right to join organisations to protect economic interests (such as trade unions) and the other being related to a specific mandate of those organisations. It is interesting that the AG’s opinion seemed to take a contradictory approach in utilising a very broad interpretation of pay and a very narrow interpretation of the right to association. The AG found it difficult to conclude that Article 4 of the AMW Directive concerning collective bargaining has as its object the regulation of the right to association. Ultimately, the AG concluded that the European Parliament and the European Council had indeed acted in breach of their jurisdiction by legislating in an area, i.e. pay, specifically excluded from the EU’s competence and proposed that the AMW Directive be annulled. The Irish Perspective The Minister for Enterprise, Trade and Employment in Ireland enacted the European Union (Adequate Minimum Wages) Regulations 2024 (S.I. No. 633 of 2024) in November last year to transpose the AMW Directive. The Minister noted that Ireland’s minimum wage setting framework was already largely in compliance. The changes included the addition of wording requiring the Low Pay Commission (“the Commission”) to consult with representatives of employers and employees prior to making a recommendation in respect of the national minimum hourly rate of pay to the Minister. It also introduced additional criteria the Commission shall have regard to when making the recommendation, in line with Article 5 of the AMW Directive. If the AMW Directive is annulled, S.I. No. 633 of 2024 will likely be repealed. The action plan on the promotion of collective bargaining, as required by Article 4 of the AMW Directive, will no longer be required. The Irish government was actively working on this plan, as a public consultation on how Ireland can increase and promote collective bargaining just recently closed for submissions on 12 May 2025. It has been reported in Irish media that trade union officials are dismayed by the AG’s opinion, as they view the AMW Directive as having the potential to promote collective bargaining in the private sector. It is important to note that even if the AMW Directive is annulled, employers in Ireland will still be required to comply with existing national legislation concerning minimum rates of pay, namely the National Minimum Wage Acts 2000 and 2015. Conclusion The AG’s opinion has been met with some surprise and criticism, considering the significant support for the AMW Directive by other Member States bar Sweden and Denmark and how the AG’s opinion appears contrary to previous case law and other Directives. It is considered uncommon for the CJEU not to follow an AG’s opinion. However, it is very rare for the CJEU to annul an entire Directive. Some commentators have offered their view that it is unlikely the CJEU will annul the entire AMW Directive, and that “conflicts over competence are generally settled on the political stage”. It is also deemed likely that the European Parliament’s more restrictive interpretation of the pay exclusion will be considered within the band of reasonableness in light of existing case law. It remains to be seen how the final CJEU decision will impact future EU directives concerning industrial relations and labour law. The decision of the CJEU is expected in the coming months, so this is one to watch! Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

Published in the Irish Employment Law Journal 2025, volume 22 Issue 3, pgs 69-71 The Court of Justice of the European Union (the “CJEU”) delivered judgment on 11 September 2025 in the case of G.L. v AB SpA (C-38/24), which concerned a preliminary ruling request from the Supreme Court of Cassation, Italy. The request for preliminary ruling concerned the interpretation of Council Directive 2000/78/EC (the “Directive”) of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. The judgment confirmed that the Directive prohibits both direct and indirect discrimination by association with a person who has a disability and that the obligation to provide reasonable accommodation extends to the caregiver, despite the fact that they do not have a disability themselves. The Facts G.L. was employed by the company AB as a “station operator” where she was responsible for monitoring and supervising an underground station. G.L. was also the caregiver of her severely disabled child, and in that capacity, she requested her employer to assign her, on a stable basis, to a fixed morning shift for her duties. Alternatively, she requested that she be given lower-level duties to enable her to follow a care programme at a fixed time in the afternoon for her minor child, who lived with her, and was severely disabled, whilst continuing to pursue her professional activity on an equal basis with other employees. AB did not grant her request but did provide her with some accommodation on a temporary basis, assigning her a fixed workplace with a preferential schedule as compared to other station operators. G.L. brought an action before the District Court, Rome, Italy, seeking a declaration that her employer’s behaviour towards her was discriminatory. She requested that her employer be ordered to assign her definitively to a shift with fixed hours, between 8:30 and 15:00, or, in any event, one compatible with her child’s needs, to adopt a plan to eliminate the discrimination, and to pay her compensation for damages. G.L. claimed that AB had treated her differently from her colleagues, who, for health reasons, were considered to be temporarily or permanently unfit to perform their work in the normal manner. Whereas those colleagues were temporarily assigned to other tasks pending retraining in different duties, being assigned to a subsidised or “assisted” service with a fixed workplace, she was not given that opportunity since, in her case, the assessment of fitness was made on the basis not of the health status of her child, but on her own health status. G.L. claimed that AB adopted measures of a temporary and nondefinitive nature over an unreasonably long period of time, which was not sufficient. Furthermore, she claimed that AB failed to take any action in respect of her request to be potentially assigned, if necessary, to lower-level duties in order to resolve her difficulties. The District Court dismissed G.L.’s action on the ground that she could not bring the action as she was not the disabled person. The Court of Appeal dismissed her case on its merits, finding that no discriminatory conduct on the part of AB had been established and that, in any event, AB had provided reasonable accommodation. G.L. brought an appeal on a point of law to the Supreme Court of Cassation, claiming that she met the legal requirements for the protection of her right to nondiscrimination on grounds of disability in the workplace. She disputed that AB provided reasonable accommodation, which she was fully entitled to and that the temporary measures granted by AB did not rule out the alleged discrimination. After she brought her appeal, she was dismissed on 10 October 2022. The Supreme Court noted that Italian law at the time of the main proceedings did not provide for general protection against discrimination and harassment in the workplace for caregivers. However, it noted the judgment of the CJEU in Coleman (C-303/06, EU:C:2008:415, 17 July 2008) provided that the family caregiver of a disabled person is entitled to protection against direct discrimination on the ground of disability in the workplace. Nevertheless, the Supreme Court did not know if this should also apply to indirect discrimination. It also noted that the Coleman judgment restricted the provision of reasonable accommodation to those with disabilities. Furthermore, since the Coleman judgment, the UN Convention on the Rights of Persons with Disabilities (the “UN Convention”) and the Charter of Fundamental Rights of the European Union (the “Charter”) both came into force. Therefore, the Supreme Court decided to stay the proceedings and refer the following questions to the CJEU: “1) Should European Union law be interpreted- where applicable on the basis also of the [UN Convention] – as meaning that a family caregiver of a severely disabled child who claims to have suffered indirect discrimination in an employment context as a result of the care provided by that individual is entitled to rely on the anti-discrimination protection that would be afforded to that disabled person, if they were the worker, by [the Directive]? 2) If the answer to [the first question] is in the affirmative, should European Union law be interpreted – where applicable on the basis also of the [UN Convention] – as meaning that it is incumbent on the employer of the abovementioned caregiver to make reasonable accommodation to guarantee compliance – also in favour of that caregiver – with the principle of equal treatment in relation to other workers, modelled on the provisions laid down in relation to persons with disabilities in Article 5 of [the Directive]? 3) If the answer to [the first and/or second questions] is in the affirmative, should European Union law be interpreted – where applicable also on the basis of the [UN Convention] – as meaning that the relevant caregiver for the purposes of [the Directive], should be understood as any person, whether a member of the family or a de facto cohabiting partner, who cares in a domestic setting, even informally, free of charge, for a significant number of hours, on an exclusive, continuous and long-term basis, for a person who, by reason of their severe disability, is not absolutely self-sufficient in the performance of the daily activities of living, or should European Union law be interpreted as meaning that the definition of the caregiver in question is broader or even narrower than as stated above?” The Decision The CJEU followed the Opinion of Advocate General Rantos. It held that the UN Convention and the Charter are an integral part of the EU legal order and their provisions may be relied upon in order to interpret the provisions of the Directive. Answer to the First Question The CJEU referred to the Coleman judgment in which it was held that direct discrimination by association on the ground of disability is prohibited by the Directive. Where an employer treats an employee who does not himself/herself have a disability less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his/her child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination under the Directive. It stated that an interpretation of the Directive limiting its application only to persons with disabilities is liable to deprive that Directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee. The CJEU also referred to the decision in CHEZ Razpredelenie Bulgaria (C-83/14, EU:C:2015:480) in respect of Directive 2000/43, which was drafted in similar terms to the Directive but in respect of “race or ethnic origin” rather than “disability”. In that case, all the electricity meters were placed on pylons forming part of the overhead electricity supply network at a height of between six and seven metres in an urban district mainly inhabited by those of Roma origin. Such meters were placed at a height of less than two metres in the other districts. The CJEU held in that case that the principle of equal treatment to which that directive refers applies not to a particular category of person but by reference to the ground in art.1, here being race or ethnic group. Therefore, those who suffered the less favourable treatment on that ground but were not of a Roma origin still benefited from the protection of that directive. Therefore, the court expressly held that indirect discrimination by association fell within the scope of Directive 2000/43. The CJEU referred to the Charter and, in particular, arts 21, 24 and 26. Article 21(1) of the Charter, prohibits “any discrimination” based, inter alia, on disability. Article 24 of the Charter provides that children are to have the right to such protection and care as is necessary for their well-being and that in all actions relating to children, the child’s best interests must be a primary consideration. Article 26 provides that the European Union is to recognise and respect the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. Reference was also made to the decision of the European Court of Human Rights in Guberina v. Croatia (22 March 2016 CE:ECHR:2016:0322JUD002368213) which held that discriminatory treatment suffered by a person on account of the disability of his or her child, with whom he or she has close personal links and for whom he or she provides care, is a form of disability-based discrimination covered by art.14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, without distinction as to whether that discrimination was direct or indirect. The CJEU stated that the UN Convention provides that the concept of “discrimination on the basis of disability” covers “any” distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms and that concept includes “all forms of discrimination” including denial of reasonable accommodation. In light of the above, the CJEU answered the first question in the affirmative stating that the Directive read in light of arts 21, 24 and 26 of the Charter and arts 2, 5 and 7 of the Convention, must be interpreted as meaning that the prohibition of indirect discrimination on grounds of disability applies to an employee who does not himself or herself have a disability but who is subject to such discrimination because of the assistance that that person provides to his or her child who has a disability, which enables that child to receive the primary care required by virtue of his or her condition. Answer to the Second Question Regarding the second question, the CJEU referred to the above-mentioned arts 24 and 26 of the Charter. It also had regard to art.2 of the Convention, which expressly provides that the concept of discrimination on the basis of disability includes all forms of discrimination, “including denial of reasonable accommodation”. In accordance with the fourth paragraph of that article, “reasonable accommodation” means: “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.” The court referred to point 53 of the Advocate General’s Opinion in which he stated that “reasonable accommodation”, as defined in art.2, is not restricted to the needs of persons with disabilities in the workplace. Accordingly, that accommodation must, where necessary, also be provided to a worker who provides the assistance which enables that person with a disability to receive the primary care required by virtue of his or her condition. Article 7(1) of the Convention further provides that the States Parties are to take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children. Point (x) of the Preamble to the Convention refers to the need to assist the families of persons with disabilities to enable families themselves to contribute towards the full and equal enjoyment of the rights of persons with disabilities. It follows that the employer must adapt the working conditions of the employee who is providing the assistance for his or her child with a disability. As regards the type of reasonable accommodation that the employer of a caregiver is required to make, the CJEU held that art.5 of the Directive should be read in light of art.2 of the Convention, which prescribes a broad definition of the concept of “reasonable accommodation”. It held that the reduction of working time may constitute one of the measures of accommodation and/or the reassignment to another job may constitute such a measure. However, the CJEU confirmed that this does not oblige an employer to take measures that would impose a disproportionate burden on it. While the CJEU held that it is for the national court to determine whether or not a measure is disproportionate, it stated that account should be taken of the financial costs entailed, the scale and financial resources of the organisation and the possibility of obtaining public funding or any other assistance. In addition, the possibility of assigning a person with a disability to another job is only available where there is at least one vacancy that the worker in question is capable of holding. The answer to the second question is that the Directive, in particular art.5, read in light of arts 24 and 26 of the Charter and art.2 and 7(1) of the Convention must be interpreted as meaning that an employer is required, in order to ensure compliance with the principle of equal treatment of workers and the prohibition of indirect discrimination referred to in the Directive, to make reasonable accommodation, within the meaning of art.5, in respect of an employee who does not himself or herself have a disability but who provides, to his or her child who has a disability, the assistance which enables that child to receive the primary care required by virtue to his or her condition, provided that that accommodation does not impose an unreasonable burden on the employer. Finally, the CJEU ruled that question number three, as asked by the referring court, was inadmissible. The concept of a caregiver is not provided for in the Directive, and the CJEU noted it appears to fall under national law. The CJEU also noted that the referring court did not provide an explanation as to the link between the third question concerning the concept of a “caregiver” and the dispute in the main proceedings. CONCLUSION The Directive was transposed in Ireland by the Employment Equality Acts. While this CJEU decision broadens the protection for caregivers and the concept of discrimination by association, it raises a number of questions. For example, will the sixmonth qualifying period under the Code of Practice for Employers and Employees on the Right to Request Flexible Working be deemed to be discriminatory, as employees with disabilities do not have to wait six months to get flexible working hours as a reasonable accommodation, where necessary and not disproportionate. Also, there does not seem to be a de minimis level of disability for the child or person for whom the employee provides care. Will employers be able to seek medical evidence in respect of the person with the disability? It is also not clear as to the definition of a “caregiver”. Furthermore, the protection of discrimination by association is very broad, only requiring the person to have suffered less favourable treatment due to one of the protected grounds but not requiring the person to come within the definition of such a ground. It will be interesting to see if this decision will result in an increase in claims under the Employment Equality Acts on the ground of discrimination by association, including refusal of remote working applications, and if so, what level of awards will be granted. Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie

In a recent decision of the Workplace Relations Commission (WRC) in the case of Noel O’Connell v National Council for Special Education (ADJ-00042837), the National Council for Special Education (NCSE) was found to have indirectly discriminated against a deaf applicant for the role of “Advisor Deaf/Hard of Hearing (ISL)”. The case is significant not only for its discrimination finding, but also because the Adjudication Officer disapplied the statutory €13,000 compensation cap applicable in access-to-employment discrimination claims, awarding €40,000 in compensation instead. Facts: In March 2022 the Complainant who is deaf and fluent in Irish Sign Language (“ISL”) applied for a role with the National Council for Special Education (“NCSE”). The role was entitled “Advisor Deaf/Hard of Hearing (ISL)” (the “Role”). In order to be eligible for consideration for the Role, the NCSE required applicants to hold a formal Irish Sign Language (“ISL”) qualification. As is typical for native sign language users, the Complainant did not hold a formal academic ISL qualification. There was also a requirement to demonstrate excellent oral communications skills. The Complainant’s application was rejected. The Complainant requested a review explaining the denial of his application. That internal review upheld his complaint, finding that he met the essential criteria. However, the NCSE did not reopen the competition for the Role or provide the Complainant with any remedy. Decision: The Adjudication Officer decided in favour of the Complainant. The Adjudicator determined that the Respondent’s actions amounted to indirect discrimination against the Complainant and the Complainant’s discrimination claim was well founded. The Adjudication Officer then turned to the question of what should be ordered by way of redress for the discrimination suffered by the Complainant. Significantly, national law in Ireland (namely Section 82(4) of the Employment Equality Act 1998) provides an upper compensation limit of €13,000.00 in cases involving discrimination in respect of access to employment (which is the category this case would fall under). However, the Complainant’s legal team sought to rely on European Law namely Article 17 of Directive 2000/78 which provides that “The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive”. The Complainant’s legal team also relied upon Case C-378/17 Minister for Justice and Equality & Commissioner of An Garda Síochána v. Workplace Relations Commission where the European Court of Justice (“ECJ”) held that bodies such as the WRC who are called upon to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective including “disapplying if need be any national provisions or national case-law that are contrary to EU law”. The Complainant was successful in his plea for effective compensation as the Adjudication Officer did in fact disapply the national compensation cap of €13,000.00 and instead ordered the Respondent to pay the Complainant compensation in the amount of €40,000.00. Takeaway for Employers: This is a highly significant decision by the WRC as it demonstrates a willingness to exercise its power to disapply national law when it conflicts with EU law. On the specific point of compensation caps, suffice to say that employers should be prepared for strong arguments against the imposition of the €13,000.00 compensation cap in access to employment claims going forward. However, employers should also be ready for arguments by employees that potentially go beyond that i.e. arguments that other statutory compensation caps should similarly be set aside in cases where more effective and dissuasive redress is required in accordance with EU law. Link to decision  –ADJ-00042837 Authors – Jane Holian and Laura Killelea 28th February 2026 Anne O’Connell Solicitors 19-22 Lower Baggot Street Dublin 2. www.aocsolicitors.ie