Re Malone's Application
| Jurisdiction | Northern Ireland |
| Judgment Date | 01 January 1988 |
| Date | 01 January 1988 |
| Court | Court of Appeal (Northern Ireland) |
- Discrimination - Sex - University - European Communities -Directive on equal treatment - Female employee - Contractual requirement for retirement at 60 - Alleged that term unlawful - Whether judicial review available - Whether public law rights involved - Irish Universities Act, 1908 (8 Edw. 7, c. 38), s. 1 - E.C. Directive 76/207, art.5 (1) - Queen's University Charter, 1981, cl. 21. Practice - Whether power to allow application for judicial review to proceed as if commenced by writ - Judicature (Northern Ireland) Act,1978 (c. 23) s. 18 - Supreme Court Act, 1981, (c. 54), s. 31 - R.S.C. (N.I.) 0.53, r. 9 (5), (6).
The appellant was employed by the Queen's University of Belfast and under her contract of employment she was required to retire at the end of the month of her sixtieth birthday. She alleged that this amounted to discrimination on the grounds of sex as male staff could remain in employment until sixty-five years and sought judicial review of the University's refusal to permit her to remain in employment until she was sixty-five. The respondent took a preliminary point that the application was not within the jurisdiction of judicial review because it was based on private law rights. The trial judge upheld this point and dismissed the application. On appeal to the Court of Appeal it was argued that the appellant's rights were public law rights because they were based on statute, the University charter and a European Community directive and that the trial judge should have permitted the proceedings to continue as if they had been commenced by writ. Held, dismissing the appeal, 1, that the appellant's rights were private law rights to be upheld before industrial tribunals or at common law and not in judicial review proceedings. The relationship between the University and the appellant was one of employer and employee created under a contract of employment. The appellant was not a member of the University and did not hold an office which because of its standing or public character would attract administrative law remedies if there was unlawful interference with it...
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