Duncan Inverarity a partner and Head of A&L Goodbody's Employment Law group and has practiced exclusively in the area of employment law and industrial relations in multiple jurisdictions. Duncan advises public and private sector employers on both contentious and non-contentious matters. He advises Board rooms across Ireland and abroad on strategic and complex employment and industrial relations matters. Duncan also specialises in crisis management for clients and has advised on some of the most high profile corporate issues in Ireland. Duncan regularly appears for clients in the Workplace Relations Commission, the Circuit Court, the High Court, the Court of Appeal and the Supreme Court. Duncan also acts for partnerships in mediated settlements and in proceedings in the High Court.
Plaintiff: Dunne
The Board of Management of Little Angels Special School
The plaintiff was the principal of a school providing education for students with learning disabilities. A number of allegations were made against the plaintiff with regard to her performance.
As a school governed and funded by the Department of Education, disciplinary proceedings applicable to the suspension and dismissal of teachers and principals are governed by the Department of Education Circular 49/2018. The Chairperson of the Board of Management engaged in this process and started it at “Stage 4” which was reserved for gross misconduct.
The plaintiff objected to the commencement of the process and alleged that the chairperson had prejudged the matter to an extent that would make any further process irredeemably unfair. The plaintiff also alleged that the chairperson was not a suitable person to undertake the report as he was neither an independent nor impartial person.
Ms Justice Butler, hearing the application on an interlocutory basis in the High Court, granted the plaintiff the injunctive relief sought. In doing so Butler J held that the plaintiff had established a fair question to be tried, on the basis of the “…conflict of interest, ‘storing up’ of complaints over an extended period of time so as to treat them cumulatively as warranting the instigation of the procedure at stage 4; lack of balance and fairness in the presentation of the issues in the relevant report”, among others. This was deemed to meet the criteria set down in Rowland v An Post [2017] IR 355 i.e. demonstrate that by reason of the matters complained of, the process has gone irremediably wrong.
When engaging in a grievance or disciplinary procedure, employers must have regard to the fundamental fairness of the process in the circumstances. Procedural fairness requires consideration of potential bias, and where appropriate, employers should alter the details of the process (for example engaging an independent third party) to mitigate any actual or reasonably perceived bias against an employee.
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