The Minister for Finance has appealed to the High Court against a Labour Court decision clearing the way for hundreds of job-sharing civil servants to pursue claims alleging discrimination over promotion.
The potential claimants held or hold job-sharing positions in the Civil Service. Prior to a European Court of Justice (ECJ) decision in 1997, it was practice to credit job-sharers, for promotional purposes, with six months' service for each actual calendar year. In a decision in the Gerster case in October 1997, the ECJ held that practice was unlawful and the practice was discontinued in February 1998.
Claims alleging discrimination were initiated by hundreds of job-sharers following the Gerster decision. However, many encountered problems as they were outside the six-month time limit set down for bringing claims in Section 19.5 of the Employment Equality Act 1997.
The Minister for Finance and three trade unions representing the claimants agreed to refer 10 sample cases to the Labour Court to determine whether the Gerster decision was "reasonable cause" for not bringing the claims within the six-month time limit in that Gerster had changed the jurisprudence in equality cases.
After a hearing in December 2001, the Labour Court decided the Gerster judgment did constitute reasonable cause for the delay in bringing the 10 claims.
The Minister's appeal against that decision opened late yesterday before Mr Justice Kelly.
Much of yesterday was taken up with a preliminary argument by counsel for the unions that the High Court did not have jurisdiction to hear the appeal. Mr Justice Kelly rejected the preliminary application and the appeal hearing will continue today.
