Teacher Refused Judicial Review in High Court Seeking to Stop Disciplinary Case Against Her

Are you a teacher?

A recent decision of the High Court may be of interest to you as it involved a teacher commencing High Court legal proceedings as a consequence of being asked to attend a disciplinary hearing.

Background

The allegation against the teacher concerned her conduct towards school staff including the school Principal. The procedures for the suspension and dismissal of teachers provide for the Principal to deal with the issue at Stage 1.

The teacher complained that as the allegation against her concerned her conduct towards the Principal the Principal should not be involved in the procedure. The Board of Management did not agree but eventually it was decided that the Principal would step aside and an independent person would be asked to deal with the stage 1 procedure.

So, the teacher went to the High Court seeking to prevent the disciplinary procedure from going ahead on two broad grounds:

  1. The Principal was biased and had prejudged the issue
  2. The teacher also argued that the procedures did not apply to her as they required the concurrence of the Minister for Finance

The Board of Management’s position was that they were merely applying the well-established, negotiated procedures which were agreed between teachers, unions, the Patrons and management bodies, and the Department of Education.

The Board also took the view that this was a matter with which the High Court should not involve itself as it was a minor matter which, at worst, would result in a verbal warning which would disappear of the teacher’s record after 6 months.

The Board also argued that section 24 of the Education Act, 1998 allows the Department of Education to determine the terms and conditions of employment of teachers and a board of management can suspend and dismiss teacher in accordance with the procedures agreed between the Minister of Education, the boards of management, the patron bodies, and the trade unions.

24.—(1) Subject to this section, a board may appoint such and so many persons as teachers and other staff of a school as the board from time to time thinks necessary for the performance of its powers and functions under this Act.

(2) The numbers and qualifications of teachers and other staff of a school, who are to be paid from monies provided by the Oireachtas, shall be subject to the approval of the Minister, with the concurrence of the Minister for Finance.

(3) A board shall appoint teachers and other staff, who are to be paid from monies provided by the Oireachtas, and may suspend or dismiss such teachers and staff, in accordance with procedures agreed from time to time between the Minister, the patron, recognised school management organisations and any recognised trade union and staff association representing teachers or other staff as appropriate.

(4) Pending the agreement of procedures provided for in subsection (3), the procedures applied in the appointment, suspension and dismissal of teachers or other staff immediately before the commencement of this section shall, after such commencement, continue to be applied.

(5) The terms and conditions of employment of teachers and other staff of a school appointed by a board and who are to be paid from monies provided by the Oireachtas shall be determined by the Minister, with the concurrence of the Minister for Finance.

(6) Where all or part of the remuneration and superannuation of teachers and other staff of a school is paid or is to be paid from monies provided by the Oireachtas, such remuneration or superannuation shall be determined from time to time by the Minister, with the concurrence of the Minister for Finance.

(7) Where, at the commencement of this section the employer of the teachers or other staff in a post-primary school is a person or body of persons other than the board of the school, then subsections (1), (3) and (5) shall apply as if the person who or the body which, at such commencement and from time to time thereafter, is such employer, is substituted for the board as therein referred to.

(8) Except in the case of an agreement as provided for in subsection (3), nothing in this Act shall have the effect of altering, after the commencement of this Act, the terms and conditions of teachers and other staff of a school under which they were employed before such commencement.

(9) This section shall not apply to teachers or other staff of a school which is established or maintained by a vocational education committee.

High Court

The Judge in the High Court held that any perception or allegation of bias or absence of fair procedures was adequately dealt with by the appointment of an independent person to investigate.

He also held that the procedures agreed between unions and boards of management formed part of the teacher’s contract of employment and were applicable and in force until they were changed by the Department of Education or were held to be invalid in legal proceedings.

Judge Binchy also noted that a verbal warning was a minor penalty and, provided there was no problem with her conduct, would be gone off her record after 6 months.

In conclusion the High Court held that the matter was of such a minor nature that the procedures adopted by the Board of Management were not amenable to judicial review and he refused the application.

Teachers and Fixed Term Contracts-the Essentials

Fixed term contracts are very common in the teaching profession in Ireland.

teacher-fixed-term-contract

This is due to a number of factors including

• The DES (Department of Education and Skills) sanctioning temporary teaching posts for a school year, rather than approving permanent posts or contracts of longer duration

• Teachers taking leave from the school on a career break, maternity leave, sick leave, carer’s leave, parental leave, job sharing, secondment etc. with the subsequent need for the school authority, such as the  Board of Management, to find a replacement.

This replacement will be given a fixed term contract.

The teacher’s contract of employment will be with the managerial authority of the school such as the VEC committee or Board of Management.

In the primary education sector the Board of Management of the school will be the employer, even though the teacher is paid by the DES.

For Boards of Management in the Primary education sector, all the normal rules and laws discussed elsewhere on this site apply when granting a fixed term contract. Additionally, there may be the requirement to make a job offer subject to certain conditions, eg

  • approval of the Patron (where necessary),
  • Garda vetting,
  • registration with the Teaching Council,
  • a certificate to teach Religious Education (if appropriate),
  • pre employment medical screening by Medmark,
  • and approval of the Minister for Education and Skills.

See also equality and discrimination in the workplace which sets out the legal grounds for schools to discriminate on religious grounds when taking on employees.

Fixed term contracts for teachers will fall into one of two categories:

• Fixed term where the duration of the contract is known or

• Specified purpose contract where the end date may be uncertain (such as maternity leave cover or illness cover).

Fixed term contracts for teachers will normally not exceed the school year, which runs from 1st September to 31st August.

Objective Grounds

It is critically important for the Board of Management to inform the teacher in the contract why they are being employed on a temporary basis, rather than being offered a permanent contract or a contract of indefinite duration, and how the contract will be determined/terminated.

Here is an example of a clause you may use when granting a contract to a teacher who will be covering for a teacher on a career break:

This contract is a Fixed-Term Contract of …. duration and is offered due to the absence of a permanent teacher in the school who is currently on career break. The contract will end on the termination of the career break. A career break can be sanctioned for a period of 1 year with annual application to renew up to 5 years.

In addition, where the Board decides to renew a fixed term contract, it is vital to inform the teacher in writing beforehand why it is not offering a permanent contract and to set out the objective justification for this.

This notice in writing should be given to the teacher at the latest by the date of renewal.

Renewal of Fixed Term Contracts

Renewal of a fixed term contract may lead to the entitlement to a contract of indefinite duration arising. (Click the link to see the circumstances where a CID may arise)

All of the other protections and obligations arising from the Protection of Employees (Fixed Term Work) Act 2003 will, naturally apply.

(See Department of Education and Skills-employing a teacher )

For a more detailed look at fixed term contracts

Recommended: Education Law in Ireland

Haddington Road Agreement and Contracts of Indefinite Duration

The Haddington Road agreement saw some significant changes brought some significant changes to a teacher’s right to a CID and reduced the service requirement from 4 years to 3.

The relevant circulars are 64/2013 for Primary teachers and 0005/2014 for secondary teachers.

Then, further improved conditions were introduced for teachers pursuant to circular letter 23/2015 which implemented the recommendations of the Ward Report, a report prepared by Peter Ward SC. The huge change in respect of CIDs brought about by this report and circular letter was a further reduction in the service requirement for primary and secondary teachers from 3 years to 2.

Yes, 2 years’ continuous employment is all that is required for a CID, whereas if you are not a teacher you will need 4 years’ service, as explained above.