EET042

• “That the principle “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, 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 the 2nd October 1997”.
  

• “Whether in light of the factual position as agreed or determined by the Labour Court in respect of all or any of the ten complainants the decision of the European Court of Justice in Gerster v Freistaat Bayern Case-C-1.95 [1997] ECR15273 constituted reasonable cause to extend time within the meaning of Section 19(5) of the Employment Equality Act, 1998”.
  

• Affidavit of Lorraine Phibbs
  
  Ms Phibbs was promoted to Clerical Office Programmer in November, 1986. She commenced job sharing in 1998. In July, 1990, the issue of her promotion to Senior Programmer was discussed. The deponent was informed that it would be necessary for her to resume working full time and that she would not be eligible to reapply for job-sharing for the period of one year. She refused the promotion as she was expecting her second child in September in 1990.
  
  Ms. Phibbs was promoted to Senior Programmer on the 7th December, 1992, conditional upon her resuming full-time employment. She again resumed working on a job-sharing basis on 18th January, 1993, and she has not been offered any promotion since that date. A male colleague, with whom she was concurrently appointed as a Senior Programmer was promoted to Executive Officer, Junior Systems Analyst in May, 1995, and is therefore entitled to a technical allowance which no longer applies to the post. Ms Phibbs further averred that in December, 1997, a colleague who was promoted to Senior Programmer approximately six months after she was promoted, was subsequently promoted to Executive Officer, Junior Systems Analyst.
  
  The deponent was promoted to Executive Officer Junior Systems Analyst in July 1998, which was backdated to 1997. However she does not qualify for the technical allowance.
  
  Ms Phibbs averred that she was unhappy about the pro-rata calculation of her service and thought it unfair but that she was not aware that it might be unlawful. She said that in October, 1997, she became aware, as a result initially of discussions amongst her work colleagues, of theGersterdecision of the European Court of Justice which received wide publicity at that time. She considered that the decision might be relevant to her service as a job-sharer and she contacted her Union, the CPSU. Her Union subsequently lodged a claim under the Employment Equality Act, 1977, on her behalf on the 27th January, 1998.
  
  Affidavit of Louisa Heneghan
  
  Ms Heneghan commenced employment as a Clerical Assistant in the Revenue Collector Generals Office in 1976. She transferred to Customs and Excise in Tullamore in 1983 as a Departmental Clerical Assistant and was subsequently promoted to Departmental Clerical Officer in November, 1991. She had been job-sharing since 1986.
  
  Ms Heneghan averred that she obtained the required standard in the Indoor Officer qualifying examination on 18th October, 1995. This is a requirement for promotion to Indoor Officer. A second requirement is to have the prescribed service. The deponent applied on 14th November, 1995, for promotion to Indoor Officer. Her application was refused, as she did not have the required service because she had been job-sharing between 1991 and 1995.
  
  Ms Heneghan averred that she was unhappy about the way her service was calculated and she raised the matter with her Trade Union in 1996. She was informed by her Union that under the job-sharing scheme job-sharing service was halved. She understood that the scheme was agreed between her Trade Union and her employer and she therefore assumed that it was lawful, if unfair.
  
  She went on to say that in October, 1997, she became aware, as a result of television reports, of the judgement in theGerstercase and, as she considered it might have implications for her employment, she contacted her Trade Union for more information. Following advice from her Trade Union, the CPSU, she subsequently instructed them to lodge a claim under the Employment Equality Act, 1977, which they did on the 8th January, 1998.
  
  Affidavit of Kathleen Durkan
  
  Ms Durkan was appointed as a Staff Officer with the Department of the Environment on 31st July, 1989. She commenced job-sharing on 7th September, 1992, and was subsequently promoted to Executive Officer on 10th April, 2000.
  
  Ms Durkan averred that she was classified as being not suitable for promotion to Executive Officer on or about 8th June, 1995, because her job-sharing service was calculated on a pro-rata basis and was deemed insufficient.
  
  The deponent further averred that in October, 1997, she became aware, as a result of media coverage, of the Gerster decision of the European Court of Justice which received wide publicity at that time. She says that the case was also covered in her Trade Union Magazine. Ms Durkan considered that the decision might be relevant to her service as a job-sharer and she contacted her Union, the CPSU. The Union subsequently lodged a claim under the Employment Equality Act, 1977, on her behalf on the 27th January, 1998.
  
  In her Affidavit, the deponent stated that an equality claim was lodged on her behalf by her Trade Union in October, 1995, in respect of the pro-rata calculation of her service while on maternity leave. However, the Union withdrew her claim in October, 1999. After the hearing, the Court raised a query with Ms Durkan’s Trade Union in relation to this averment. A supplemental Affidavit sworn by this applicant was subsequently filed with the Court dated 2nd July, 2003.
  
  In her supplemental Affidavit, the applicant averred that in 1993, whilst still job-sharing, she took a period of maternity leave for which she was paid at the normal job-sharing rate. She subsequently initiated a claim under the Employment Equality Act, 1977, seeking full pay in respect of this period. The claim was subsequently withdrawn in October, 1999, after a number of similar claims failed either before an Equality Officer and the Labour Court on appeal. She said that this matter is of no relevance to the application herein and was referred to in her original Affidavit for the sake of completeness.
  
  Affidavit of Terezina Boyle
  
  Ms Boyle was recruited as a Clerical Assistant job-sharer in 1985 and remained job-sharing in the Department of Foreign Affairs until 1987. She transferred to a full-time post as a Clerical Assistant in 1987 and was promoted to Clerical Officer in the Department of Social, Community and Family Affairs in Letterkenny in 1991.
  
  Ms Boyle applied for promotion to Clerical Officer pursuant to the provisions of circular 15/90. The service requirement was four years. She averred that the personnel section of the Department in which she worked advised her that job-sharing service of two years counted as one year for promotional purposes and that her overall service at that point amounted to three years and 340 days.
  
  Ms Boyle averred that she was recruited as a job-sharer and that when she was recruited she was informed of the conditions of her employment as a job-sharer and she signed all entry dockets as such. She further says that she was made aware when commencing employment as a job-sharer that her conditions of employment would be pro-rata with that of full time employees. She says she was unhappy about the pro-rata calculation of her service and she thought it unfair but that it was explained to her by a member of the staff of the Civil Service Commission that it was a condition of her employment under the job-sharing scheme. Ms Boyle did not approach her employer or her Trade Union, as she understood that the said conditions of employment were agreed between the Department of Finance and her Trade Union.
  
  In October, 1997, she became aware, as a result of newspaper and television reports, of the judgement in theGerstercase. She made enquires of her Trade Union Representative shortly afterwards and was informed that a circular would be issued which would clarify the significance of the decision. In or around January, 1998, she became aware as a result of information from her Trade Union, the CPSU, of the implications of theGersterjudgement for job-sharers service and she considered that the judgement might have implications for her employment. She then contacted her Trade Union and subsequently instructed them to lodge a claim, on her behalf under the Employment Equality Act, 1977 which they did on the 2nd of February, 1998.
  
  Affidavit of Elizabeth Monaghan
  
  Ms Monaghan has been employed as a Clerical Officer in the Department of Agriculture since September, 1993. She participated in a job-sharing arrangement from 1st September, 1993, until the 1st December, 1997. The deponent is currently employed as a Clerical Officer acting up to Executive Officer.
  
  Ms. Monaghan applied for promotion to Staff Officer and to Executive Officer in August, 1996. Her application was refused as she was deemed not to have the required service because she had been job-sharing. The deponent consulted her Trade Union in this matter who advised that the Department was correct in calculating her service pro-rata. Ms Boyle accepted this advice. She further confirmed that it was through a circular dated 13th August, 1996, notifying her of the competition to fill promotional vacancies that she became aware that the pro-rata calculation of her service while job-sharing would render her ineligible to compete for these posts. She considered this to be unfair.
  
  The deponent appealed the decision in a letter dated August, 1996, a copy of which was exhibited. In a reply, a copy of which was also exhibited, she was advised that the pro-rata calculation of service under the job-sharing scheme was mandatory and that the Department had no discretion to change it. In light of this letter, the deponent came to the view that the situation could not be altered. Although she was unhappy about the way her service was calculated she assumed it was lawful, if unfair.
  
  On or about October, 1997, Ms Monaghan became aware, as a result of newspaper reports, of theGersterdecision of the European Court of Justice, which received wide publicity at that time. She considered that the decision might be relevant to her service as a job-sharer and she wrote to the personnel division of the Department by letter dated the 5th October, 1997, requesting a review of her situation. She received a reply by letter dated 31st October, 1997, stating that the matter was receiving attention. A copy of that letter was exhibited. Shortly thereafter she contacted her Union the CPSU. The Union subsequently lodged a claim under the Employment Equality Act, 1977, on her behalf on the 27th January, 1998.
  
  Affidavit of Rosanna Kearns
  
  Ms Kearns commenced employment with the Department of Social & Family Affairs in October, 1986, as a graduate Executive Officer. She worked full time until December, 1991, when she availed of the job-sharing scheme in order to take care of her three children. She continued job-sharing for six years until December, 1997, when she returned to full time employment.
  
  Ms. Kearns averred that during the time in which she was job-sharing, she was credited with six months service for seniority purposes for each year of service. At the time of making her claim of discrimination in 1998, she was still an Executive Officer after almost twelve years in the Department. Full-time colleagues who had entered the Department at the same time as her were promoted on seniority after between 9/10 years service.
  
  The claimant was aware that when job-sharing she would only receive six months credit for seniority purposes for each year. This rule was set out in the job-sharing circular and she understood that both her employer and her Trade Union accepted the pro-rata principle.
  
  The deponent averred that it was only after theGersterdecision of the European Court of Justice that she came to realise that she was being discriminated against. Her realisation was confirmed in Department of Finance Circular 4/98 dated the 10th February, 1998. A copy of this circular was exhibited by the deponent. Ms Kearns subsequently contacted her Union, the CPSU. The Union then lodged a claim under the Employment Equality Act, 1977 on her behalf on the 27th January, 1998.
  
  
  Affidavit of Sharon Doyle
  
  Ms Doyle commenced employment in the Office of Public Works as a Clerical Assistant and she participated in the job-sharing scheme between 1989 and 1995. Ms Doyle averred that a colleague who commenced employment on the same day as her was promoted to Clerical Officer on a seniority/suitability basis on 12th January, 1990. She further averred that she was not promoted due to the fact that the time which she spent job-sharing only accrued at half its full value for the purpose of promotion.
  
  The claimant was aware that while job-sharing her service would be halved and she assumed that this complied with the law.
  
  Ms Doyle said she was unaware that this practice was unlawful until she read a Union circular following theGersterdecision of the European Court of Justice. Ms Doyle then contacted her Union, the CPSU. The Union subsequently lodged a claim under the Employment Equality Act, 1977.
  
  Affidavit of Maria Curley
  
  Ms Curley commenced employment as a Clerical Officer Programmer in the Revenue Commissioners in September 1979 and was promoted to Executive Officer in February 1989.
  
  Ms Curley averred that in 1990 the Department of Finance entered into an agreement with her Trade Union that Executive Officers who worked in the I.T section and who met certain criteria would be paid a gratuity of £1,750. This agreement also stated that a two year qualifying period and a one year earning period would be required before the gratuity would be paid. The Department of Finance also ruled that a job-sharer would also have to work twice the qualifying period for half the gratuity.
  
  The deponent says that her Union challenged this matter on her behalf. The Revenue Commissioners confirmed that a job sharer would have to work four years for the qualifying period and two years for the earning period and would receive only half of the gratuity. Ms Curley’s Union’s representations to the Revenue Commissioners were on the basis of unfairness rather than on the basis of it being discriminatory within the meaning of the Employment Equality Act, 1977.
  
  During her time as a job sharer, Ms. Curley knew that she was being given 6 months' credit for each 12 months' actual service for seniority purposes as per the rules of the job-sharing scheme set out in the Department of Finance circular. She averred that she was not aware of the equality legislation and, furthermore, it was only after theGersterjudgement in the European Court of Justice that she came to realise that she was being discriminated against. Her realisation was confirmed by the Department of Finance Circular 4/98 which she exhibited with her affidavit. Ms Curley subsequently contacted her Union, the PSEU, which lodged a claim under the Employment Equality Act, 1977, on her behalf on the 12th February, 1998.
  
  Affidavit of Margaret O’Keeffe
  
  Ms O’Keeffe commenced job sharing as an Executive Officer on the 26th April, 1993 and continued in that capacity until 24th March, 1998. She was informed by the Department by which she was employed on the 22nd June, 1997, that she had been assigned to the Executive Officer higher scale with effect from 1st October, 1996. Under the Union’s restructuring agreement with the Department, 25% of Executive Officers are assigned to the higher scale.
  
  On or around the 15th July, 1997, the deponent was informed verbally by Mr Dave Hanley, Assistant Principal of the Personnel Division, that due to an error her record on the seniority list had not been adjusted because of her job sharing. When it was adjusted she was not entitled to the higher scale and this was not then granted to her.
  
  The deponent knew that as a job sharer she was credited with 6 months' service per actual year of service for seniority purposes and for the purpose of promotion and/or the purpose of obtaining the higher scale as set out in the Department circulars. She understood that both her employer and her Union accepted this application of the pro-rata principle.
  
  Following publicity surrounding of theGersterjudgement in the European Court of Justice, the deponent contacted her Union, the PSEU. The Union lodged a claim under the Employment Equality Act, 1977, on her behalf on the 27th July, 1998.
  
  Affidavit of Bernadette Halpin
  
  Ms Halpin commenced employment as a Clerical Assistant in 1979. She was appointed to the Revenue Commissioners. In 1983 she was promoted to the grade of Tax Officer and then in 1986 she passed the Higher Tax Officer Qualifying Examination.
  
  Ms Halpin commenced job sharing on the 17th April, 1989, under the terms of the job sharing circular. She continued job sharing until 25th October, 1993. She understood, as per the circular, that her service for seniority purposes would be on a pro-rata basis and, in effect, this meant that over her period as a job sharer she would, for seniority purposes, fall behind full-time workers who were appointed to their grade at the same time or after her.
  
  The deponent commenced a career break on the 25th October, 1993, and returned to work in April, 1994, on a full time basis. On 13th February, 1995, she recommenced job sharing and was promoted to Higher Tax Officer on 7th May, 1998. She continued to job share in the new grade.
  
  Ms Halpin averred that the seniority list did not indicate the location at which the Officer was serving and that job sharers were not separately identified as such on the seniority list. Therefore, it was virtually impossible for her to keep track of her position on the list. At a later stage, seniority lists denoted job sharers by an asterisk but the acting seniority positions on the list were not adjusted to take account of the job sharing period. At a later date, Revenue adjusted the seniority list to take account of the period of job sharing in respect of full time staff. This adjustment was only made at the date of issue of the seniority list.
  
  Ms Halpin further averred that the seniority list was not freely available in the Revenue Tax Offices. Information could only be obtained from the personnel department and information was only provided on the inquirers own position. The full seniority list was only provided to her Union on a confidential basis. To the best of the deponent’s knowledge the seniority lists were not regularly updated and were issued only on an annual basis. She believed that it was unfair that she lost seniority but she believed that this was an inevitable result of job sharing.
  
  In October, 1997, theGerstercase was reported in National and Union newspapers. She then contacted her Union, IMPACT, and they subsequently lodged a claim under the Employment Equality Act, 1977 on her behalf. The deponent further averred that as a direct result of theGersterdecision she was promoted on the 7th May, 1998. She estimates that she would have been promoted in 1983/1984 had job sharing been treated in the same regard as full service.
  

• Affidavit of Marie McLaughlin
  
  Ms McLaughlin is a Principal Officer within the civil service and is assigned to the Equality Unit of the Department of Finance. She had caused certain enquires to be made with relevant Government Departments and considered their responses for the purpose of making her affidavit.
  
  Ms McLaughlin referred to the previous hearing before the Labour Court and to the subsequent proceeding before the High Court. She then went on to refer to the affidavits sworn by the applicants herein and to respond to those affidavits.
  
  The deponent referred to the affidavit of Elizabeth Monaghan who averred that in August, 1996, she had appealed against the decision deeming her ineligible to compete in a certain competition because her service while job sharing was calculated pro-rata with that of full-time Officers. Ms McLaughlin further referred to the affidavit of Ms Maria Curley who confirmed that she had made representations objecting to the manner in which her service as a job sharer was treated for the purpose of becoming eligible for the I.T gratuity.
  
  Finally, the deponent pointed out that while each of the applicants had clarified that they were aware of the manner in which job sharing service was calculated, they had not exhibited the standard job-sharing contract into which they had entered. Ms McLaughlin pointed out that this contract specifically stated that the job sharing position was approved under the terms of circular 3/84 a copy of which was enclosed with each standard contract. Each job sharer was required to sign a form of undertaking stating that she had read the circular 3/84 (a copy of which was exhibited with the affidavit).
  
  Ms Mac Laughlin then made a number of corrections in relation to matters of detail in the affidavits of four of the claimants.
  

• Each of the applicants was aware of the manner in which job sharers were treated for the purpose of seniority by virtue of circular 3/84 (“the job sharing scheme”). Ms McLaughlin further asserts that each of them was aware of the factual scenario which is alleged to have arisen by virtue of the application of the job sharing scheme which in turn gave rise to the alleged difference in treatment. Ms McLaughlin went on to say that the applicants were aware of the underlying facts in respect of which they all complain. What the claimants were not aware of was that the bringing of a claim in relation to this factual situations to the European Court of Justice was likely to be successful.
  
  It was pointed out that these factual assertions allowed the respondent to contend at the previous hearing of this matter before the Court that, as a matter of law, ignorance of ones legal position could not constitute justification for the extension of a time limit. The fact that the claimants are now aware, on the basis of the decision inGerster, that their claim could be successful, is not, the respondent contends, a basis for extending the time limit prescribed by Section 19(5).
  
  The respondent contended that each of the applicants has now clarified that she was aware that service of job-sharers for seniority purposes was calculated pro-rata. In addition, each of the applicants was aware that they were either excluded from a particular competition by virtue of not being eligible due to the manner in which seniority was calculated or that their colleagues who were more junior in years of seniority were being promoted ahead of them. In that regard, the respondent pointed out that certain applicants went so far as to take issue with the discrimination to which they were allegedly subjected.
  

• “Job sharing staff will be eligible for promotion on the same basis as full time staff, subject to the following conditions-
  

Date when the Time Limit starts to run:

Section 19(5) of the Employment Equality Act, 1977 provides: -

• “Save only where a reasonable cause can be shown, a reference under this section shall be lodged not later than 6 months from the date of the first occurrence of the act alleged to constitute the discrimination.”
  

• “The phrase “good reason”, is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show(and I think the onus under Order 84, Rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”.
  

• “There is no substance in the plaintiffs arguments that there was no cause of action until he knew that Section 4 of the Act of 1939 had been held to be unconstitutional. He had the right to bring proceeding once he was notified that his job was forfeited but he had to bring such action within the statutory period. The forfeiture complained of was a single act and not a continuing wrong.
  

• The reported case shows that the period can, in appropriate circumstances, be enlarged. It is often convenient for the purpose of discussion to extract from these decisions a list of factors that are relevant to the question of whether an extension should be granted. Such a list does not lay down a rigid test. The only criterion is whether the interest of justice requires that the time limit should be enlarged and the weight to be given to each factor would depend on the circumstances of each case”.
  

English Case Law.

There are a number of English authorities on the extension of the time limit for the bringing of unfair dismissal proceedings, which could usefully be considered in the present context. The Employment Protection (Consolidation) Act 1978 provided, in effect, that a complaint of unfair dismissal had to be presented to an Industrial Tribunal within three months of the dismissal. However, the Tribunal was empowered to extend the time where “it was not reasonably practicable” for the claimant to present his or her complaint in time. InBodha v Hampshire Area Health Authority [1982] ICR 200it was held that the expression used in this statute imposed a standard which lies somewhere betweenreasonableon the one hand andreasonably capable physically of being doneon the other. It is, however, a somewhat higher standard than that of reasonable cause.

The English Court of Appeal considered the circumstances in which the discretion to extend the time should be exercised by Industrial Tribunals in a number of cases. The first such case was that ofDedman v British Building and Engineering Appliances Ltd [1973] IRLR 379. Here the dismissed employee consulted his solicitor within the time limit but the solicitor did not tell him that the claim must be made within that time. In relation to the approach which should be adopted Lord Denning MR said:

• “In my opinion the words “not practicable” should be given a liberal interpretation in favour of the man. My reason is because a strict construction would give rise to much injustice which Parliament cannot have intended.”
  

• 'It seems to me axiomatic that what is or is not reasonably practicable is in essence a question of fact. The question falls to be resolved by finding what the facts are and forming an opinion as to their effect having regard to the ordinary experience of human affairs. The test is empirical and involves no legal concept. Practical common sense is the keynote and legalistic footnotes may have no better result than to introduce a lawyer's complications into what should be a layman's pristine province. These considerations prompt me to express the emphatic view that the proper forum to decide such questions is the Industrial Tribunal, and that their decision should prevail unless it is plainly perverse or oppressive. S.88 of the Employment Protection Act 1975 provides for appeal to the Appeal Tribunal only on questions of law.'
  

• 'I would venture to take the simple test given by the majority in Dedman's case [1973] IRLR 379. It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights -- or ignorance of the time limit -- is not just cause or excuse, unless it appears that he or his advisors could not reasonably be expected to have been aware of them. If he or his advisors could reasonably have been so expected, it was his or their fault, and he must take the consequences. That was the view adopted by the Employment Appeal Tribunal in Scotland in House of Clydesdale Ltd v Foy [1976] IRLR 391 and in England in Times Newspapers Ltd v O'Regan [1977] IRLR 101 -- a decision with which I agree.
  

• What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the Industrial Tribunal and that it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the particular case, an Industrial Tribunal may wish to consider the manner in which and reason for which the employee was dismissed, including the extent to which, if at all, the employer's conciliatory appeals machinery has been used. It will no doubt investigate what was the substantial cause of the employee's failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the Industrial Tribunal to investigate whether at the time when he was dismissed, and if not then when thereafter, he knew that he had the right to complain that he had been unfairly dismissed; in some cases the Tribunal may have to consider whether there has been any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for it to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the advisors' knowledge of the facts of the employee's case; and of the nature of any advice which they may have given to him. In any event it will probably be relevant in most cases for the Industrial Tribunal to ask itself whether there has been any substantial fault on the part of the employee or his advisor which has led to the failure to comply with the statutory time limit. Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the Industrial Tribunal taking all the circumstances of the given case into account.

Having considered the authorities referred to, it appears to the Court that it is for the applicants to show that there are reasons which both explain the delay and which afford an excuse for the delay. The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one but it must be applied to the facts known to the applicants at the material time.

While it is not expressly provided in the Act, it seems implicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include those identified inBord na Mona v Sisk, namely, the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.

The explanation offered by the applicants for not initiating their claims before the decision inGersteris that they did not know that the rules of the job-sharing scheme constituted unlawful discrimination or that they had a cause of action against the respondent in European Law. It has been suggested that this type of explanation is acceptable where the applicant or his or her advisors could not reasonably have been expected to be aware of their rights (Walls Meat Co Ltd v Khan). A similar view appears to have been taken by Costello J (as he then was) inO’Donnell v Dun Laoghaire Corporation.

Conclusions of the Court

The job sharing scheme giving rise to these applications was introduced by the Minister of the Public Service on foot of a Government decision. An integral part of that decision was that service for promotion purposes would be calculated on a pro rata basis. The conditions of service applicable to Civil Servants are regulated through sophisticated and highly formulised arrangements involving consultation between the government as an employer and the recognised Civil Service Trade Unions. It was within these arrangements that the impugned conditions relating to promotions were effectively agreed.

Any reasonable person would have accepted that, in introducing the provision now impugned, the Government must have believed that it was acting in conformity with the obligations of the State under National and European Law. Moreover, such a person would have been reinforced in that view by the knowledge that their Trade Unions shared the Government’s view as to the legality of applying service pro rata.

As appears from the affidavits opened to the Court, all of the applicants believed that the system of pro rating their service was unfair but none of them considered that it might be unlawful. Some of the applicants raised the issue with their employer while others raised it with their Trade Union. In all cases, they were told that the calculation of service pro rata was standard and, by implication, could not be challenged. While individuals may not have been happy with the advice which they received it was, in the Court’s view, perfectly reasonable for them to have accepted that the advice was nonetheless sound in terms of the options available to them.

This factual background provides a reasonable explanation and a justifiable excuse as to why the applicants did not take the initiative, before the decision inGerster,to challenge the Government as an employer alleging that the job-sharing scheme offended against European Law. Even if they did suspect that the scheme did offend against employment equality law (and there is no evidence to suggest that they did) it is highly unlikely that any of the applicants would have been in a position to take on the financial and other hazards associated with bringing such an action which, in all probability, would have ended in the ECJ. The decision in theGerstercase brought about a significant change in these circumstances in that the Trade Unions, realising that the state of the law was not as they and the Government had understood it to be, felt able to pursue the present cases before this Court.

In light of the decision inGersterthere is no doubt that the applicants have a good arguable case on its merits, which in the interest of justice should be heard. Moreover, it is accepted by the respondent that they have not suffered any prejudice as a result of the delay in that all witnesses and records necessary to defend all and every action are still available.

In all the circumstances of the case, the Court believes that reasonable cause has been shown as to why the within complaints were not made within the limitation period prescribed by Section 19(5). The Court determines that the time for bringing these complaints should be enlarged and that they are, accordingly, in time and should be referred to the Director of Equality Investigations for investigation and recommendation



Signed on behalf of the Labour Court



Kevin Duffy
29th July, 2004______________________
CONChairman



NOTE

Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.