Today’s email from the Labour and Superior Court Case Law Review Panel is written by Alan Haugh BL and concerns the case of McEneaney -v- Cavan and Monaghan Education and Training Board & anor [2016] IECA 53.

Background

Judgment was given on behalf of the Court by the President, Ryan P, on 2 March 2016. The matter came before the Court of Appeal by way of an appeal brought by Ms McEneaney (‘the Applicant’) against the decision of Kearns P delivered on 19 September 2014 ([2014] IEHC 423) in which the President of the High Court had refused her application to quash two decisions of the respondent Education and Training Board (‘the ETB’) in her regard.

Facts

The Applicant is a home economics teacher who was employed by the respondent’s predecessor (Monaghan VEC) at Largy College, Clones, Co. Monaghan since 1999. In January 2013, the Principal at Largy College received a number of complaints from concerned parents regarding the Applicant’s alleged incompetence in the performance of her professional duties. Separately, the school Chaplain had raised concerns with the Principal about the Applicant’s mental health.

The Principal brought the parents’ concerns to the attention of the Applicant and advised her that the procedures for addressing alleged underperformance provided in Circular 59/2009 would be applied. Meanwhile, because of the concerns that had been raised about the Applicant’s health, the ETB referred her for a medical assessment to their occupational health advisor. The latter reported the Applicant was fit to attend work. Thereafter, in February2013, a meeting was convened to discuss the Applicant’s performance issues. She was represented by her trade union at this meeting. Her representative proposed that the Applicant could be assisted through the use of team teaching. However, the Applicant herself had a change of mind and rejected this approach. She then went on extended certified sick leave.

A second meeting took place with management in June 2013, in the course of which the Union requested that the Applicant be transferred to an alternative school. The Applicant was referred for a further medical assessment and declared fit to work, subject to appropriate supports being put in place. Thereafter the Applicant withdrew her request to transfer.

A series of meetings between the Applicant and representatives of the ETB then took place at which the Applicant was presented with an ultimatum: transfer to a named smaller school where she should have a lesser workload or face an investigation pursuant to Circular 59/2009. Ultimately, the CEO of the ETB informed the Applicant by letter of his decision pursuant to Memorandum V7 to transfer her to Bawnboy School in County Cavan. This is the first of the two decisions that the Applicant sought to quash in the proceedings. By letter dated 13 September 2013, the Applicant was placed on paid administrative leave in light of her refusal to transfer her place of employment as directed by the ETB. This is the second decision in respect of which the Applicant sought certiorari.

The High Court

In seeking to quash the Respondent’s decision to transfer her to Bawnboy, the Applicant submitted that she was entitled to avail of all the stages provided for in Circular 59/2009 and had a legitimate expectation that they would be applied fully in her case.

Kearns P gave detailed consideration to the status and provisions of the Circular and noted that it, “envisages that several steps must be taken which have the object of assessing (including independently assessing) and indeed improving the teacher’s performance before any disciplinary process may commence on professional competence issues.” He found, however, that the intervention made on behalf of the Applicant by her Union at the February 2013 meeting and the request made on her behalf for a transfer in March 2013 resulted in the discontinuation of the process under the Circular before any formal procedures had been undertaken.

Kearns P found for the Applicant in so far as he accepted that the Respondent, in saying it would apply the Circular, had created an expectation, at least at the outset, that the various stages thereof would be applied in her case. However, he went out to hold that it was the Applicant’s behaviour which was responsible for the failure of the informal process. In any event, as the Court noted, the Circular itself expressly provided that its provisions were not prescriptive and may not be applicable in all circumstances.

The Applicant submitted that the decision to transfer her to Bawnboy should be construed as meaning the complaints against her had been made out and that it equated, therefore, to a penalty. While conscious of not straying into making a decision on the merits of the case in the course of judicial review proceedings, Kearns P rejected the foregoing submission:

“The Court heard no evidence to suggest that the plaintiff’s remuneration, pension or other entitlements would suffer any reduction by virtue of any such transfer, so the Court altogether fails to understand how the particular decision could be construed as a “penalty” having regard to the fact that it was the solution proposed to her difficulties by the applicant herself.”

Likewise, Kearns P refused to quash the ETB’s decision to place the Applicant on paid administrative leave, stating that “it would have been quite unrealistic to allow the applicant return to teaching duties in Largy College without a full resolution of the complaints made against her. The interests of the school, its students, and more particularly the applicant herself, required no less.”

He emphasised that the suspension was non-punitive in nature as the Applicant was on leave with full pay and was fully aware of the reasons for her being placed on administrative leave. Kearns P considered his own earlier judgment in Morgan v Trinity College [2003] 3 IR 157 in which the Court emphasised the distinction to be drawn between the application of suspension without pay as a disciplinary sanction, on the one hand, and a suspension with pay pending an investigation, on the other. In respect of the former only, a person is entitled to be afforded natural justice and fair procedures before the decision to suspend him is taken.

Applying the foregoing the facts of the instant case, Kearns P held:

“It seems to me that these considerations must apply a fortiori where the interests of parents and children in a teaching context are concerned. The suspension or the placing of a person such as the applicant on administrative leave in such a case is merely done by way of good administration. A situation had arisen in the present case which demanded that something be done, and certainly the applicant could not be allowed to resume teaching duties in September of 2013 in Largy College as though nothing had happened.”

The Court of Appeal

The Court accepted that Kearns P had found that the Applicant had a legitimate expectation (at the outset of the process, at least) that the progressive stages of the Circular would be applied in her case, but disagreed with the Applicant’s submission that Kearns P “decided that the Board was entitled to or did in fact abandon the procedure in Circular 59/2009 by the reason of the behaviour of Ms. McEneaney.” Rather, the Court of Appeal took the view that “the informal procedure did proceed, but that the arrangements or the process was collapsed by reason of the behaviour of Ms McEneaney”.

Nevertheless, the Court of Appeal took the view that although the “informal approach” was still live “the situation had now changed from being a disciplinary one, or a teaching competence one, to a concern about Ms. McEneany’s health and what was going to be done about that and whether she could be certified: “what began as a disciplinary process very soon translated into a concern about Ms. McEneaney’s health.”

In the words of the court, this meant that the ETB was now confronted with “a human relations problem” but it didn’t follow that the informal process commenced at the February meeting had been abandoned. In fact, in August 2013, in the Court of Appeal’s view, when the CEO of the ETB was considering the Applicant’s request to transfer schools, “the process was still continuing along the mode of informal resolution. Nothing had happened to remove that situation from the approach that had originally been adopted.” In those circumstances, it was the Court’s view that “the informal procedure never came to an end, but actually proceeded right to the decision by Mr. O’Brien to transfer Ms. McEneaney from Largy to Bawnboy.”

In upholding the High Court’s refusal to quash the ETB’s decision to transfer the Applicant from Largy College to Bawnboy, the Court of Appeal found that Memorandum V7, which formed part of the Applicant’s contract of employment, provided the legal basis for the transfer, and that the transfer was a reasonable decision, justified in all the circumstances:

“That was a reasonable decision that was justified in the circumstances. There was ample basis for making the decision. It was within the capacity of the CEO to exercise that jurisdiction. The decision was reasonably and rationally made and there is no basis for certiorari.”

The Court of Appeal’s judgment does not expressly deal with the second decision in her case in respect of which she also sought an order of certiorari i.e. the decision to place her on paid administrative leave. One assumes that it is to be implied from the Court’s discussion of the continuing informal (and therefore non-disciplinary) nature of the process that the suggestion that the Applicant’s suspension could be construed as a sanction or punitive does not arise.

The final paragraph of the judgment closes with what could be construed as a reprimand of the Applicant’s decision to initiate legal action in response to the decisions taken by the ETB in her regard:

“I think that the problem is not that the Board medicalised [the situation], but rather that Ms. Mc. Eneaney perhaps refused to accept that there was a medical element of significance in the case and she instead sought to legalise a problem that could have been disposed of in a different manner, and in my view should have been dealt with otherwise than legally.”

Commentary

The decisions under review were handed down in judicial review proceedings which do not afford the Court an occasion to determine the merits of the case. Nevertheless, given the nature of the dispute, both judgments inevitably reveal something of the court’s thinking in relation to the underlying substantive issues.

There is an element of ‘David v Goliath’ about the respective circumstances of the parties in these proceedings. The Applicant has a disability and the facts as reported indicate that her disability was a key factor which influenced the decisions ultimately taken by the Respondent. It is most likely that her disability contributed in some measure at least to the circumstances which gave rise to the initial complaints regarding her professional competence.

The judgment of Kearns P, in particular, appears to accept the Respondent’s submission that the Applicant’s transfer to a smaller school with fewer classes and less pressure would benefit her in this regard and be less detrimental to her mental health than were she to remain teaching in Largy College where (in the words of the Court of Appeal) “there was going to be a situation where complaints were in existence and were being dealt with, whether informally or more formally and there were additional reasons for thinking that parents and their children were going to be somewhat hostile or at least suspicious of Ms McEneaney.”

The judgments record only minimal information in relation to the medical assessments made of the Applicant during the relevant period. One is left wondering to what extent the issues of reasonable accommodation for the Applicant’s disability (as required pursuant to the Employment Equality Act 1998) was explored and whether, if had that avenue been explored to its fullest extent, the Applicant herself may have been more accepting of “the medical element of significance in the case” with the result that the parties could have avoided this litigation entirely.

It does not appear that The Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241 was opened to either the High Court or to the Court of Appeal in the within proceedings. In his judgment in that case, Noonan J said the decision to suspend an employee – even if the suspension is paid and non-punitive – should only be taken when absolutely necessary:

“40. The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v. Trinity College Dublin [2003] 3 IR 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. In Mr. Reilly’s case, his evidence was that rumours and reports circulated about him ranging from possibly being involved in fraud to participation in a tiger kidnapping.

41. Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process …”.

The case of Bank of Ireland v Reilly [2015] IEHC 241 came before the High Court by way of a full appeal from a Circuit Court decision under the Unfair Dismissals Act 1977 and the court, therefore, in those proceedings had occasion to give detailed consideration to each of the substantive issues raised therein. Noonan J’s comments in relation to the potentially devastating consequences for an employee who is subject to an ostensibly non-punitive suspension are difficult to reconcile with Kearns J’s (as he was then) arguably formulaic distinction between a purely holdings suspension, on the one hand, and a punitive suspension, on the other.

Noonan J, as can be seen from the passage quoted above, made specific reference to that section of Kearns J’s judgment in Morgan v. Trinity College Dublin [2003] 3 IR 157 in which the latter’s dicta in relation to suspension occur. Noonan J’s dicta have attracted considerable commentary on the part of both academic and practicing lawyers following the publication of his judgment in the Bank of Ireland case. In any event, Kearns P, regrettably, didn’t avail of the opportunity to express any views on the correctness or otherwise of Noonan J’s dicta and simply applied the approach he himself had set out in Morgan in the instant proceedings.

Finally, it is worth noting the view the Court of Appeal took in relation to the legal standing of the Department of Education and Science circular the application of which was at issue in the within proceedings. The question of whether or not Circular 59/2009 has ‘statutory force’ was put in issue at the appeal stage by the Applicant’s lawyers. This proposition was rejected as incorrect at paragraph 34 by Ryan P for the court:

“For what it is worth, it seems to me that one is on unsafe legal ground in saying that there was statutory authority for the Circular in vocational schools. The scheme in the 2009 Circular was published with the express knowledge and against the background that section 24 of the [Education] Act did not apply to such schools at the time. However, it is submitted that when the new version of section [24] was introduced following the enactment of the [the Education (Amendment) Act 2012], this had the effect of making the non-statutory scheme statutory. I do not see how that logic can be approved. My view is that the new section 24, as applied by section 6 of the 2012 Act, envisages schemes that are going to be approved and agreed in the future, but it does not clothe those that are already in existence with statutory effect.”

Full Case Decision:

http://www.bailii.org/ie/cases/IECA/2016/CA53.html