Court rules sick pay changes apply to gardaí

Tuesday 02 February 2016 23.13
Garda representative bodies  argued they should be exempted from halving of paid sick leave
Garda representative bodies argued they should be exempted from halving of paid sick leave

The Court of Appeal has ruled that members of An Garda Síochána are not entitled to be exempted from the halving of paid sick leave entitlements introduced by the Department of Public Expenditure and Reform across the public service.

However, the Court upheld a High Court decision by Mr Justice Nicholas Kearns that the Department should pay the legal costs of the Garda Representative Association despite the fact that the state had won the case, because of late disclosure of relevant documents in the case.

The cost to the taxpayer could run to hundreds of thousands of euro.

Garda representative bodies had argued that they should be exempted from the halving of paid sick leave entitlements introduced by the Government for public servants.

However, in October 2014, the then President of the High Court Mr Justice Nicholas Kearns rejected the Garda claims on all grounds.

Then in a highly unusual move he awarded the costs of the case against the Department of Public Expenditure and Reform, because they had only delivered certain documents late into the trial.

Internal DPER emails revealed that the General Secretary of the IMPACT trade union Shay Cody had warned the Department in December 2013 that he would ballot his members for industrial action if the Gardaí were exempted.

However, those emails were not disclosed until late into the case.

The GRA had argued that Minister Brendan Howlin engaged in a u-turn following this communication and refused to exempt them.

In his High Court judgment, Mr Justice Kearns stressed that the communications went nowhere near supporting any contention of underhand or wrongful communication between Mr Cody and Minister Howlin, and rejected suggestions that it would be inappropriate for Mr Howlin to have regard to Mr Cody's communication.

However, he awarded costs against the Department.

Ms Justice Finlay Geoghegan upheld that decision in the Court today, and dismissed the Department's appeal against the costs ruling.

She said Mr Justice Kearns had made his ruling by reason of the failure of the Department at the outset of the judicial review proceedings to put before the court all factual matters relevant to the issues in the proceedings.

Ms Justice Finlay Geoghegan noted that in the initial replying affidavit, no reference was made to Mr Cody's intervention or to emails on the matter exchanged with DPER on 4 and 5 December 2013, with those facts only coming to light late in the day on the production of discovery.

She said Mr Justice Kearns had taken the view that those matters were relevant to the issues in the proceedings and in particular to the decision taken by the respondent on 5 December, to include An Garda Síochána in the initial regulations.

She said the trial judge was on the facts entitled to exercise his discretion in the manner that he did.

Ms Justice Finlay Geoghegan said the Department was obliged to give the court a complete picture of any relevant factual matter, adding that no explanation had been sought or given for the initial failure to disclose.

She agreed with the trial judge that no criticism could be made of Mr Cody for making the intervention he did, which was made prior to the coming into effect of the 2013 act.

She said the minister was exercising a delegated legislative power and was not prohibited from receiving and taking into account submissions from an interested party.

GRA President Dermot O'Brien

The acceptability or otherwise of the terms of the proposed regulations to a significant sector of the public service represented by Mr Cody could not be considered an irrelevant consideration.

Ms Justice Finlay Geoghegan also noted that a lack of clarity in some of the applicable regulations meant that further claims by individuals prejudiced by them would not be precluded by today's ruling.

Following the ruling, the GRA has said it was extremely disappointed.

GRA President Dermot O'Brien said the ruling would have to be digested it but pledged to explore every possible avenue.

He welcomed the Court of Appeal's acknowledgement that the relevant regulations lacked clarity.

A further hearing is scheduled 10 February to deal with the issue of costs for an earlier injunction hearing, as well as the costs of the actual appeal to the Court of Appeal. 

Minister welcomes Court of Appeal decision

The Minister for Public Expenditure and Reform has welcomed the Court of Appeal Decision.

However, Brendan Howlin did not comment on the fact that despite winning the case, the Department's breach of disclosure rules meant the taxpayer would have to pick up all legal costs.

A Department statement merely noted that the Court had dismissed a cross-appeal by the Minister regarding the award of costs to the GRA.

The Department said the 2014 sick leave statistics showed the new reduced sick leave arrangements had had a significant impact across the public service as a whole. 

It said that in the justice sector the average worker took 10.7 sick days per year.

Even though the reduced sick pay arrangements only kicked in in April 2014, during that calender year the number of sick days lost fell to 7.7.

The total lost time rate fell from 4.7% to 3.4%, while the total cost of sick leave fell by 9.7%.

The Department noted the recent Garda Inspectorate Report commented that the annual reduction of three days sick leave per worker was the equivalent of hiring an additional 236 Gardai.

Asked to clarify their position on the costs bill, the Department issued the following clarification:

"We are pleased we won the case. Changes to sick leave arrangements are bringing significant benefits, including an estimated €50 million saving in 2014. These savings are expected to increase significantly over time. The costs of defending the legal case need to be seen in this context."