The Charter of Fundamental Rights
The Charter of Fundamental
Rights of the European Union
Maura Connolly considers the impact that the Charter would have on Irish employment laws
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-discrimination
One 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
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Maura Connolly
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
“The Charter intends to
give more “visibility” to
fundamental rights and
reaffirms the rights already
established in EU law.”
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 bargaining
Given 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
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 The Charter of Fundamental Rights
“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”
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
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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 dismissal
Irish 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
“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.”
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
Public Affairs Ireland