Monday 10 December 2018

Gardaí lose Supreme Court appeal over sick pay

Gardaí previously had a more generous sick pay scheme. Stock photo
Gardaí previously had a more generous sick pay scheme. Stock photo

Tim Healy

The Garda Representative Association (GRA) has lost a Supreme Court appeal over a Government decision to halve their paid sick leave entitlements from March 2014.

In a unanimous decision, the five-judge court found the statutory regimes covering public service sick pay do not, of themselves, confer any right to be consulted prior to to the making of regulations introduced by the Minsiter for Public Expenditure and Reform.

The GRA sued the Minister claiming it members were deprived of their legal entitlement to a genuine consultation process before the cut in sick pay was made. 

Gardaí previously had a more generous sick pay scheme and the GRA argued, due to the additional risk of their occupation, gardai should have been exempted from the new restrictions.

It also sought an order overturning the regulations.

The High Court rejected the claim and the Court of Appeal upheld that decision.

The Supreme Court later agreed to permit the GRA bring a further appeal after deciding the case involved issues of general public importance. The Minister cross-appealed the costs decision.

On Wednesday, on behalf of the Supreme Court, Mr Justice Frank Clarke said the regulations, introduced under the 2013 Public Service Management (Recruitment and Appointments) Amendment Act, created in essence a parallel system for the making of regulations for sick leave remuneration of the gardai.

That Act, in its terms, stated to apply notwithstanding any other legislative provision, the judge said.

Mr Justice Clarke had, for the purposes of argument, been prepared to accept it was possible the GRA was entitled to some engagement prior to the making of such regulations.  The first basis was the possibility that any restriction place on the ability of the gardai to conduct what for others might be considered ordinary industrial relations may give rise to an entitlement to be consulted, he said.

The second basis for that proposition was it may be arguable that the history of engagement between the parties is such to give rise to a legitimate expectation that it would form some form of consultation or the right to make representations would be afforded, he said.

However, Mr Justice Clarke said he had also concluded that under neither of those headings was it arguable that there could be a right to any specific form of process.

"Rather, the height of the argument could only extend to an entitlement to a generalised form of consultation or facility to make representations".

On that basis, he had considered the facts and concluded that no breach of any such general entitlement had been established.

There was a "lengthy engagement between what might loosely be called the Government side and the GRA", he said. 

On that basis, he had come to the view  that, even if any generalised right to consultation/make representations could be said to arise on any of the legal bases put forward, "no breach of any such entitlement has been established".

For that reason, he did not consider it necessary to determine whether any such rights "exist int he first place for, even if they do, such rights have not been breached"

He dismissed the appeal and affirmed the orders of the court below.

The issue of costs and the Minister's cross-appeal will be dealt with at a later date.

Similar challenges by other garda representative associations have been dependent on the outcome of the Supreme Court decision.  

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