FULL RECOMMENDATION
SECTION 19(5), EMPLOYMENT EQUALITY ACT, 1977 PARTIES : DEPARTMENT OF FINANCE (REPRESENTED BY MARY FINLAY S.C. INSTRUCTED BY CHIEF STATE SOLICITORS OFFICE) - AND - CIVIL AND PUBLIC SERVICE UNION PUBLIC SERVICE EXECUTIVE UNION IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Time Limit , arising from the European Court of Justice decision in the Gerster case.
BACKGROUND:
2. The Labour Court investigated the dispute on the 7th of December, 2001.
The applications now before the Court are in respect of 10 individual cases which, it is agreed between the parties, are representative of some 500 other individual claims referred to the Court outside the time limit prescribed by Section 19(5) of the Employment Equality Act, 1977. In each case, the Court is asked to accept that reasonable cause has been shown as to why the reference was not made within the prescribed time limit.
Each of the claims arise from the decision of the European Court of Justice in the case of Gerster v Freistaat Bayern [1997] ECR 1 5273 in which judgment was delivered on the 2nd of October, 1997. It is claimed that by reason of the decision in that case the previous practice of the respondents in crediting job-sharers with 0.5 years service, for promotional purposes, for each actual calendar years' service was unlawful. The practice complained of was discontinued by the respondents in February, 1998.
Following the referral of these cases, the Court discussed with the parties the procedural steps which should be followed in processing applications for an extension of time. It was agreed that a number of sample cases would be selected and processed on the understanding that the decision of the Court in respect of those cases could facilitate the parties in determining which, if any, of the remaining cases are admissible.
It was further agreed that in each case the reasonable cause relied upon would be the decision in the Gerster case. In that regard the then Chairman of the Court wrote to the parties on the 10th of June, 1998, and stated as follows:-
- “That the principal “reasonable cause” in every case will be that the GERSTER decision changed the jurisprudence in equality cases, and the claims are based on this new jurisprudence which was not available to the claimants for promotion prior to 2nd October 1997.”
- In the same letter the Chairman went on:-
- “It is, however, important that the test case or cases only rely on the facts of the Gerster decision as the reason why no application was made earlier than 2nd October 1997.”
- “That the principal “reasonable cause” in every case will be that the GERSTER decision changed the jurisprudence in equality cases, and the claims are based on this new jurisprudence which was not available to the claimants for promotion prior to 2nd October 1997.”
It is the Unions’ case that prior to the decision in Gerster it was generally accepted that the application of pro-rata conditions to part-time workers in every aspect of their employment was acceptable and lawful. This, they say, was the belief of both the Unions and the Department of Finance at the time the job-sharing scheme was devised. When the impugned provision as to calculation of seniority was put in place, there could not have been any reason to believe that it was unlawful.
- For its part the respondent submitted that the Unions cannot rely on a lack of knowledge as to their legal rights to excuse the delay in referring the cases herein. They also deny that the decision in Gerster represents a change in the jurisprudence of the ECJ and referred to a line of cases in which the same underlying rationale was manifest.
Having regard to the extensive submissions made by the parties, it is appropriate to set out the salient points which the Court considers should be taken into account in formulating its determination.
1. The Court accepts that the time limit starts to run from the date of first occurrence of the discrimination complained of and cannot be measured from the date of knowledge of the prospective claimant.
2. Section 19(5) of the Act allows the Court to extend the time limit where there is reasonable cause. The Act does not impose any limitation on the factors which may be relied upon as constituting reasonable cause.
3. The Court does not accept that the time limit at issue can be equated with a statutory limitation period. Unlike a limitation period, Section 19(5) does not provide an absolute defence to a claim which is made outside the time limit. These cases can, therefore, be distinguished from Murphy v Ireland [1996] 3 IR 307, to which the Court was referred.
4. The Court accepts that it is for the prospective claimants to establish to the satisfaction of the Court (a) the reasons for not making the claim within the time limit and (b) the reasons why the delay should be excused (O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301). Moreover, the Court accepts that the prospective claimant must not only explain the failure to make the claim within the time limit but must also explain the actual delay in making the claim.
5. The Court should consider what, if any, prejudice would be suffered by the Respondent, or third parties, in allowing an out of time claim to proceed. In relation to the instant cases, the Respondent did not establish that they are prejudiced in defending these claims by the delay. It was suggested that prejudice could arise from the fact that other Officers have been appointed in the promotional competitions which may be impugned. The Court does not consider this a relevant factor since any determination in the cases to which these applications relate could not affect the position of those previously appointed.
6. The Equal Treatment Directive (75/117/EC) provides that Member States shall put in place such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment to pursue their claims by judicial process after possible recourse to other competent authorities. ECJ has held inPreston and Others v Wolverhampton NHS Trust [2000] IRLR 506 that time limits on the exercise of such rights are not unlawful provided that the limitation period is not less favourable for actions based on Community law than for those based on domestic law.
7. The Act must be interpreted in light of the wording and purpose of the Directive so as to achieve the result envisaged by the directive (Van Colson and Kamann v Land Nordrhein – Westfalen [1984] ECR 1819). That interpretative obligation applies as much to this Court as it does to a Court of law (Murphy v An Board Telecom Eireann [1989] ILRM 53.)
8. The Court believes that a domestic equivalent to a claim of discrimination is an action in tort or for breach of contract, in respect of which a six year limitation period applies. In determining whether the time limit in Section 19(5) is a less favourable provision, the wide discretion which the Court has been given to allow in otherwise out of time claims (as opposed to the rigidity of a limitation period) is a factor which could be considered highly relevant.
DECISION:
This is not a case in which it is simply claimed that ignorance of the law excused the delay in the sense that the prospective claimants did not know of the time limit or were unaware of their right to equal treatment.
The Court accepts that prior to the decision of the ECJ inGerster, it was generally understood that the application to part-time employees of pro-rata conditions of employment was, in respect of promotions, consistent with the Equal Treatment Directive. This was clearly the understanding of the State as an employer and of the Civil Service Trade Unions when the job-sharing scheme was designed.
The conditions of service applicable to Civil Servants are regulated through sophisticated and highly formalised arrangements involving consultation and agreement between the Government as an employer and recognised Civil Service Unions. It was within these arrangements that the impugned conditions relating to promotions were agreed. It is fully accepted, that in so doing, both sides acted with complete bona-fides and on the basis of their understanding of the state of the law as it then stood. In light of the decision inGerster,it now appears as if that understanding was mistaken. It was, however, entirely reasonable for individual Civil Servants to leave matters relating to their conditions of service to their professional Trade Union Representatives and to accept that what they agreed was lawful.
Whilst a small number of individual members of one Trade Union did seek to challenge the arrangements, the Court fully accepts that the general advice which Civil Servants would have received from their Trade Unions at the material time was to the effect that the scheme for job–sharing did not infringe the principles of equal treatment.
The net question which the Court is asked to consider is whether, in the circumstances of the cases before it, the elaboration of the law inGersterconstitutes reasonable cause for the actual delay in bringing these claims. In answering that question in the affirmative, the Court is of the view that the delay is excusable in so far as it resulted from a bona-fide interpretation of the law, jointly held by the Government as an employer and the claimants’ trade unions.
For all of the reasons stated above, the Court is satisfied that reasonable cause has been shown for the actual delay in referring the instant cases.
For the avoidance of doubt, the Court wishes to make it clear that its decision, that reasonable cause has been shown in the instant cases, should not be taken as extending beyond those cases already lodged with the Court. As pointed out in paragraph 4 above, a prospective claimant must not only show reasonable cause for not bringing their claim within the time limit but also for the actual delay. That is a factor which might legitimately be raised in respect of any future claims not forming part of the block of claims giving rise to this hearing.
Signed on behalf of the Labour Court
Kevin Duffy
14th January, 2002______________________
LW/CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.