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Latest in Employment Law>Case Law>An Post v Thomas/Riordan [2011]
An Post v Thomas/Riordan [2011]
Published on: 04/11/2011
Issues Covered: Discrimination Working Time
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Background

This case concerned an appeal by two job-sharing post office clerks against a RC finding that they had not been discriminated against on grounds of their part-time status, in terms of access to additional annual leave entitlements that were based on length of service. In summary, An Post operated a scheme whereby basic annual leave entitlement was 23 days for full-time employees. One additional day’s leave accrued after five years' service and a further day after ten years. 

Both claimants in this case had over ten years' service. Accordingly the respondent provided them with 12.5 days annual leave, exactly half the total of 25 days provided to an equivalent full time worker. This was to reflect the fact that each worked on a week-on week-off basis and thus worked half the number of hours of a full time employee, i.e. 40 hours per fortnight. The RC found that this pro rata approach complied with the 2001 Act and dismissed their claim.

For the purposes of the Labour Court appeal, the respondent continued to argue that such pro rata treatment complied with the Act. However, the claimant’s trade union argued that the service related portion of annual leave was an entitlement accruing on the basis of service only and therefore should not be calculated on a pro rata basis. 

The Court noted that Section 10 of the 2001 Act provides that the extent to which a part-time worker is entitled to pro rata treatment with a full time comparator in relation to a particular condition of employment shall be related to the proportion of hours worked. However, this only applies in a case where the amount of the benefit to be derived from the particular condition of employment is dependent on the number of hours worked. In this case, though, it was clear and accepted by the employer that the entitlement to additional days of leave was purely service-related and open to both full-time and part-time employees regardless of the number of hours worked.

Accordingly, the Court determined that Section 10 and the principle of pro rata should not apply in this case, echoing its finding in the previous case of Dunnes Stores Letterkenny and A Group of Workers (PTD 046). Given that the complainants work full 8 hour days when they attend at work as they operate on a week-on, week-off basis, the effect of this decision is to provide them with two extra days annual leave, amounting to a total of 13.5 days – 11.5 days pro rata annual leave and two days service leave. 

The Court acknowledged that this finding produced ‘a certain anomalous result’ in that job sharers who work the same number of hours but on the basis of mornings or afternoons only as opposed to week-on, week-off will effectively only have a legal entitlement to 12.5 days annual leave - 11.5 days pro rata annual leave and two days service leave at four hours per day.

Finally, without prejudice to its contention that the claimants had been treated equally, the respondent argued that it had an objective justification for less favourable treatment in that it could not afford to pay the cost associated with this claim. 

The Court rejected this contention, noting that the Irish legislature had not provided for a cost argument when framing the 2001 Act, and quoting the decision of the European Court of Justice in the case of Hill and Stapleton v Revenue Commissioners [1998] E.L.R 225 that ‘an employer cannot justify discrimination arising under a job-sharing scheme solely on the grounds that the avoidance of such discrimination would involve increased costs’.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 04/11/2011
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