Gardaí fail in bid to be exempted from new sick pay regulations

A legal action aimed at exempting gardaí from regulations introducing reduced sick pay entitlements in the public service has failed at the High Court.

The Garda Representative Association, representing rank and file gardaí; the Association of Garda Sergeants and Inspectors and the two organisations representing superintendents and chief superintendents had sued the Minister for Public Expenditure and Reform Brendan Howlin arising from the 2014 Public Service Management (Sick Leave) Regulations.

Among the provisions of the regulations, introduced last April, is that sick leave on full pay is reduced from six months to three.

The President of the High Court, Mr Justice Nicholas Kearns, today rejected all grounds of the GRA's action. The proceedings by the other bodies were brought on similar grounds.

However, the judge indicated the late discovery by the Minister's side of documents concerning communications between the Department of Public Expenditure and Reform and Shay Cody, general secretary of the Impact trade union, in which Mr Cody was stated to have warned against exempting gardai from the reduced sick pay entitlements, may impact on his decision on liability for the costs of the case. Costs issues will be decided next week.

In his judgment, the judge rejected claims by the GRA it was inappropriate for the Minister to take the views of Mr Cody into account when considering whether or not to include gardaí in the scheme.

A series of emails between senior officials in the DPER in December 2013, including an email which stated Shay Cody had said he would ballot his members “if we go ahead without the gardaí” went nowhere near supporting any contention that underhand or wrongful communication took place between Mr Cody and the Minister, the judge said.

Among various claims, the Garda representative bodies claimed the regulations were brought in without proper consultation, breached fair procedures and they had a legitimate expectation nothing was to be done until negotiations between the Department and Garda representatives were completed.

The Gardai argued the regulations will cause hardship to their members and did not reflect factors including the nature of policing and that gardai work shifts. They also claimed they were initially informed they would be excluded from the new regulations until negotiations had been concluded.

It was alleged Mr Howlin made a sudden u-turn last December after Mr Cody threatened to ballot union members if gardaí were not included. It was inappropriate for the Minister to take Mr Cody’s views into account, it was submitted.

It was argued on behalf of the Minister he was fully entitled to introduce regulations designed to ensure savings of public monies. The Minister claimed the cuts were necessary to increase productivity and lower then cost of sick pay to the public sector, estimated at €500m in 2011. Garda sick pay was estimated at €27m in 2012 but the GRA argued that was a “gross over-estimation”.

It was also argued it was "only right and proper" Mr Cody be informed of the Garda bid to be excluded as he was chair of the Irish Congress of Trade Unions's Public Service Committee, which played a central role in the negotiations concerning the sick leave issue.

Mr Cody made clear there would be “serious implications” for the new scheme across the entire public service if gardaí were exempted and his views, which “could not be ignored”, were among several considered by the Minister, it was stated.

Mr Cody believed gardaí had failed to make a compelling case why they should be treated differently to other public service workers, it was also stated.

Mr Justice Kearns said, at most, the GRA applicants sought a limited form of procedural relief to defer the application of the regulations to members of the Garda until a consultation process reached a conclusion. It seemed the GRA believe the consultation process was designed solely to achieve an outcome satisfactory to the applicants.

Such an argument was “untenable” because it would impose a serious limitation on the Minister’s power to legislate as the applicants were effectively arguing the Minister’s power to introduce new regulations, clearly mandated by statute, could be fettered indefinitely by the prolongation of a consultation process.