17Public Affairs Ireland

the chArter of fundAmentAl rights

If ratified, the Lisbon Treaty will give legal force in Irish law to the Charter of Fundamental Rights of the European Union. The Charter was originally signed and proclaimed in December 2000 by the three institutions of the European Union. A revised Charter, re-negotiated during the Irish 2004 EU presidency, was finalised in 2007 and will be given legally binding force through Article 6 of the Lisbon Treaty. Article 6 provides that the Charter will have the same legal value as the Treaties of the EU.

The Charter sets out to highlight certain fundamental rights and principles which form the backdrop to existing EU treaties, regulations and directives as interpreted by the EU Court of Justice. The EU Court of Justice and Irish Courts will be obliged to have regard to its principles when considering legal rights emanating from EU law. The Charter intends to give more “visibility” to fundamental rights and reaffirms the rights already established in EU law.

Irish employment law draws from EU and domestic legislation and concepts of Natural and Constitutional justice to create a range of rights on which employees in the public and private sector may rely. The 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (as amended) was brought into Irish law by the European Convention on Human Rights Act, 2003. The Act requires public sector bodies to perform functions in a manner compatible with the Convention, and includes principles and rights affecting employees.

This article considers aspects of the Charter which are relevant to and will have an impact on Irish employment law.

Anti-discriminationOne of the reasons for the revision of the Charter in 2007 was to achieve some further definition and explanation as to the meaning of its provisions. Notwithstanding these revisions there remain a number of concepts which are not precisely defined and which will remain to be interpreted by the EU and Irish Courts.

The anti-discrimination principles recognised by the Charter extend past the nine grounds of discrimination set out in

the Employment Equality Acts 1998 – 2007 (in the employment context) and the Equal Status Act 2000 (supply of goods and services) and now include prohibition on any discrimination based on new grounds “genetic features … property, birth”.

The grounds of property and birth are included in Article 14 of the European Convention on Human Rights Act, 2003. Article 14 of the Act precludes discrimination in relation to the enjoyment of the rights and freedoms set forth in the Convention. The Act is addressed to the public sector and the functions of State bodies, rather than private sector bodies.

The Charter extends the ambit of these concepts and prohibits “any” discrimination on any of the grounds. It is not confined in the Charter to State bodies, the employment context, or the provision of goods and services, as in

existing legislation. Within the constraints set out in the Charter which subjugate the principles enunciated to existing EU laws, the Charter could give rise to new grounds of action.

The concept of “genetic features” is a new ground, although arguably “genetic features” may to some extent have already been covered by existing prohibitions (if certain features are due to disability, racial or ethnic origin). It would seem also to extend to discrimination on grounds of genetic or biological origin, for example, where an individual was born through surrogacy or assisted reproduction.

The principle of non-discrimination on grounds of property could possibly affect the imposition of means testing in accessing services, for example, access to educational grants, where exclusion from a benefit on grounds of having property or financial means could be discrimination on grounds of property.

If the Charter is adopted in conjunction with the Lisbon Treaty, these new concepts will require further consideration by the EU and Irish Courts. Article 51 of the Charter makes it clear that the EU institutions and Courts may have regard only to the provisions of the Charter where implementing EU law, including the Convention on Human Rights. This means that although there are certain additional concepts introduced by the Charter they do not expand the scope of existing EU treaties and for these principles to have legal effect there is a requirement for additional EU or domestic legislation.

Notwithstanding these limitations, the enunciation of new fundamental rights will create opportunities for citizens to challenge Member States in allowing them access the full range of protections available under EU law as it is developed and will set the backdrop for the consideration of any new EU directives or domestic laws.

Collective bargainingGiven the rights based approach of the Charter a surprising aspects of the debate on the first Lisbon referendum was the less than wholehearted support given by certain sectors of the trade union movement to the Treaty and the Charter. While the Irish Congress of Trade Unions (ICTU) expressed its support for the adoption, other trade unions were

The Charter of Fundamental Rights of the European union

Maura Connolly considers the impact that the Charter would have on Irish employment laws

“The Charter intends to give more “visibility” to fundamental rights and

reaffirms the rights already established in EU law.”

Maura Connolly

18 Public Affairs Ireland

the chArter of fundAmentAl rights

more reserved. SIPTU’s statement at the time recommended acceptance only if the Government guaranteed collective bargaining rights to workers. The issue of mandatory collective recognition has been a long running theme in Irish industrial relations.

Irish law recognises, as a constitutional right, the right of individuals to form associations. This has been interpreted as meaning that while employees have the right to join a trade union there is no obligation on an employer to recognise that trade union for the purpose of collective bargaining. While there are some situations in which a process of systemic information and consultation with employee representatives is statutorily required (such as collective redundancies) a distinction is drawn between consultation and negotiation. Irish trade unions have sought, through social partnership negotiations, to advance an argument for mandatory trade union recognition and the right to collectively bargain.

Article 28 of the Charter recognises the right to take collective action, including strike action but subjects this to an overriding principle that such action is in accordance with EU law and national laws and practices. The cause of mandatory collective recognition has not been advanced by the Charter but neither has it been limited. The issue remains a matter for local laws and agreement.

Article 27 strengthens the information and consultation rights which are already enshrined in EU law and jurisprudence and states that employees or their representatives must be guaranteed information and consultation in good time in the situations provided by EU and national law. The

use of the word “guarantee” adds to the existing European Court of Justice case law which requires Member States to take all measures necessary to guarantee the application and effectiveness of EU law.

Unjustified dismissalIrish law protects employees against unfair dismissal which is a statutory concept defined under the Unfair Dismissals Acts 1977 to 2007. The Acts place the onus on an employer to justify any dismissal on grounds of conduct, capability or redundancy or some other substantial reason justifying dismissal. Protections

are also afforded to employees against dismissal on any of nine grounds of discrimination. The Charter prohibits “unjustified dismissal”. This term differs from the Irish statutory definition of unfair dismissal but it is consistent with the approach adopted which requires a justification for any dismissal and when taken with the requirement in Article 47 which provides for a right to a fair hearing consolidates existing Irish law principles.

There remain some sectors where employees do not have access to the statutory protections of the Unfair Dismissals Acts. For such employees the concept of “unjustified dismissal” could supplement the existing common law rights of wrongful dismissal.

Protection of personal data Article 8 enunciates some general principles concerning the protection to be afforded to personal data. Irish law relating to data protection and freedom of information is well developed and is consistent with the principles of the Charter.

If adopted, the Charter will add to the body of EU law and jurisprudence. It underpins certain concepts as creating fundamental rights on which citizens may rely. In the employment context, it is likely that the expansion of anti-discrimination principles and protections from unjustified dismissal will supplement Irish law and practice and will create a further set of core principles against which the practices of employers (both in the public and private sector) will be assessed.

Maura Connolly is a partner and Head of Employment Law with Eugene F. Collins Solicitors

“The principle of non-discrimination on grounds of property could possibly

affect the imposition of means testing in accessing

services, for example, access to educational grants, where exclusion from a benefit on grounds of having property or financial means could be discrimination on grounds of

property.”

“The enunciation of new fundamental rights will create

opportunities for citizens to challenge Member States in allowing them access the full range of protections available

under EU law”