The High Court has allowed an appeal by the Minister for Finance against a Labour Court decision that cleared the way for job-sharing civil servants to pursue claims alleging discrimination in relation to promotion.
On consent yesterday of lawyers for the Minister and three trade unions, Mr Justice Kelly returned the case to the Labour Court for determination of issues relating to 10 job-sharing claimants.
The court will have to decide if a 1997 European Court of Justice decision in the so-called Gerster case constituted reasonable cause to extend the time limit for claimants to pursue their cases.
The judge expressed the view that the Labour Court had reached its original decision on the basis of facts not established in evidence.
The potential claimants held or hold job-sharing positions in the civil service. Before the Gerster decision, it was practice to credit job-sharers, for promotional purposes, with six months' service for each calendar year. In Gerster, the ECJ held that that practice was unlawful and it was discontinued in February 1998.
Claims alleging discrimination were initiated by hundreds of job-sharers following the decision. However, many encountered problems as they were outside the six-month time limit for bringing claims under Section 19.5 of the Employment Equality Act, 1997.
The Minister for Finance and the three trade unions - the Civil and Public Service Union, the Public Service Executive Union and the Irish Municipal Public and Civil Trade Union (IMPACT) - agreed to refer 10 sample cases to the Labour Court to determine whether Gerster was "reasonable cause" for not bringing the claims within the six-month time limit, in that Gerster had changed the jurisprudence in equality cases.
The understanding was that the decision of the court regarding the 10 would facilitate the sides in determining which, if any, of the remaining cases were admissible.
After a hearing in December 2001, the Labour Court decided Gerster did constitute reasonable cause for the delay in bringing the 10 claims. It was that decision which was appealed by the Minister and the matter will now go back to the Labour Court.
