The Court of Appeal has dismissed a challenge by the Garda Representative Association (GRA) and garda Amy Bourke to public service sick-pay regulations that applied to members of An Garda Síochána. It also dismissed the Minister for Public Expenditure and Reform’s cross-appeal over costs.
The appeal concerned a High Court decision refusing the applicants’ request to have the regulations declared invalid. They argued that the Minister should have consulted the GRA before making them, either because the association had a legitimate expectation of further consultation or because fairness required it. They also raised other grounds, including whether the Minister had considered relevant matters and whether parts of the regulations were unclear.
The regulations followed public service sick-pay reform proposals begun in 2012. The GRA did not take part in negotiations through the Irish Congress of Trade Unions because gardaí are prohibited by law from joining a trade union. A Garda Partnership Working Group opposed applying the proposed arrangements to gardaí pending a review. In early December 2013, the Department of Public Expenditure and Reform first told the Garda associations that gardaí would not be included in the initial scheme. The Minister then directed that they be included. The change was not immediately communicated to the GRA.
The association received draft regulations expressly including gardaí at a Partnership Working Group meeting in January 2014. The regulations were signed on 6 March and came into effect on 31 March 2014.
Delivering the appeal judgment, Ms Justice Finlay Geoghegan held that the Minister was exercising a delegated legislative power to make rules for broad categories of public servants. In those circumstances, the law did not require consultation with people who might be adversely affected. She also found no promise by or on behalf of the Minister that the GRA would receive the further consultation process it sought.
The court rejected the other challenges, including the claim that the Minister’s decision was invalid because of an intervention by a union representative or a failure to consider the statutory requirement to protect public servants’ health. It accepted that Regulations 9 and 10 lacked clarity, but said this did not justify invalidating the regulations as a whole or making the declaration sought by the GRA. The judgment does not preclude an individual who is prejudiced by the lack of clarity from bringing a claim.
The appeal was dismissed. The cross-appeal was also dismissed, leaving in place the High Court’s decision to award costs to the applicants. The Court of Appeal said the High Court was entitled to take account of the respondent’s initial failure to disclose relevant emails and the union representative’s intervention in its replying affidavit.