Emer Lally v Board of Management of Rosmini Community School

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 04 October 2021
• Neutral Citation: [2021] IEHC 633
• Docket Number: [2021 No. 3615 P.]
• Court: High Court

Between

Emer Lally

Plaintiff

and

Board of Management of Rosmini Community School

Defendant

[2021] IEHC 633

[2021 No. 3615 P.]

THE HIGH COURT

JUDGMENT of Ms. Justice Butler delivered on the 4th day of October, 2021

Introduction

1 The long-term effects of the COVID-19 pandemic and restrictions imposed on normal daily life to prevent the spread of the virus throughout the community will only become apparent in years to come. Undoubtedly one of the sectors most affected is education where time and educational experience lost to pupils through the closure of schools might never be recovered. It need hardly be said, particularly after the unprecedented lockdown in Spring of 2020, that everybody in the educational sector — schools, their management boards, principals, teachers, pupils and parents worked hard to ensure that the effects of any subsequent lockdown would be minimised through the effective use of remote teaching and learning platforms. A second lockdown was imposed in January of 2021 and schools remained closed save to specific groups of pupils until after Easter.

2 This case concerns disciplinary proceedings against a teacher arising out of differing interpretations of how so-called “ blended learning” was to be delivered during the second lockdown in the school in which the teacher works. The principal of the school maintains that the teacher cancelled a large number of classes without notice to the school leading, inter alia, to complaints from parents. The teacher maintains that she taught an appropriate proportion of her classes live via the school's remote platform and set work for pupils to complete independently for the remainder of her classes while she was available remotely to answer questions and correct work. The school, through its principal, has commenced a disciplinary process against the teacher under DES Circular 49/2018 which contains agreed procedures for the suspension and dismissal of teachers and principals. The disciplinary process has been commenced at stage 4 of those procedures on the basis that the “ conduct issue is of a serious nature”. Presumably, a view has been taken by the principal that the issue was so serious it could not be adequately dealt with by a verbal or written warning or even a final warning under any of the earlier stages of the agreed procedures. It is undisputed that the ultimate decision as to whether there has been misconduct on the part of the plaintiff and, if so, the appropriate sanction to be imposed, is one to be made by the Board of Management.

3 The situation is complicated by the fact that the dispute underlying the allegations now made against the teacher originally surfaced as an industrial relations dispute. The teachers in the school are represented by two different trade unions. The majority are members of and are represented by the Teachers' Union of Ireland (TUI) and a minority, including the plaintiff, by the Association of Secondary Teachers of Ireland (ASTI). Following the first lockdown, the ASTI issued directives to its members effective from November, 2020 not to cooperate with changes to work practices in schools unless there had been a consensus reached at a meeting of staff in respect of those changes and the changes were “ time neutral” (i.e. they did not impose obligations on teachers which would take additional time). The school maintains that there has been no change in work practices. There was engagement between the ASTI in the school which was ongoing at the time that issue was first raised individually with a number of teachers, including the plaintiff, all of whom are members of the ASTI. It is also a feature of this case that teachers who are members of the other trade union, the TUI, co-authored a letter to the school in February, 2021 complaining that a number of their colleagues who were members of the ASTI were not teaching their fully timetabled hours. The authors of that letter included one of the teacher nominees on the Board of Management.

4 This is the plaintiff's application for an interlocutory injunction to restrain the disciplinary process until her legal proceedings challenging that process have been determined. She takes issue, inter alia, with the legality of a comprehensive report prepared by the principal to commence stage 4 of the process; with whether the process has been properly carried out in accordance with DES 49/2018; with whether the Board of Management is now tainted by objective bias; and whether fair procedures are being applied. Subsequent to the institution of proceedings, the principal withdrew the comprehensive report and provided the plaintiff with an amended version which, the school's solicitors have indicated, the Board of Management intends to consider once any restriction on continuing the disciplinary process has been lifted. The two versions of the comprehensive report will be referred to as the first comprehensive report and the second comprehensive report respectively. As the first comprehensive report has been withdrawn, the school argues that the case as originally pleaded by the plaintiff is moot and the school should be permitted to continue with a disciplinary process against her. In response, the teacher has brought a motion seeking both an interlocutory injunction and liberty to amend the plenary summons to reflect the fact that the first comprehensive report has been withdrawn and taking issue with the proposal to issue the second comprehensive report. The statement of claim which was issued just before the trial of the interlocutory application presumes such amendment and deals with the situation as it stood in July, 2021.

5 Clearly, this judgment cannot resolve the factual issues between the parties. A determination of whether the plaintiff has breached her obligations as a teacher through the way in which she discharged her duties during the lockdown period can only be determined through an appropriate disciplinary process. Thus, the only issues of concern to the court are the process itself and whether it has been shown that what has already been done and what is now proposed have departed sufficiently from DES 49/2018 or the rules of natural justice and fair procedures to warrant restraining the process until the litigation has concluded. I should observe at the outset that the threshold faced by the plaintiff is high. The settled case law makes it clear that in normal course an ongoing disciplinary process should be allowed to proceed unless it is clear that the process has gone irremediably wrong such that any conclusion reached adverse to the employee would be bound to be legally unsustainable (per Clarke J., as he then was, in Rowland v. An Post [2017] IR 355). That said, there are also a number of cases in the education sector involving the application of these procedures (i.e. DES Circular 49/2018 or its predecessors) where the teacher concerned succeeded in establishing that the threshold had been reached. As each case depends on its individual facts, it will be necessary to look at the facts of this case in some detail.

6 Before doing so, however, I propose to make a number of general observations identifying some unusual features of this case which suggest that it is different in material respects from other cases in this field. Firstly, there is no history of a strained relationship between the parties – or at least none disclosed on affidavit – before the lockdown in January, 2021. It is frequently a characteristic of these cases that the issues the subject of the disciplinary process have been superimposed on a history of other complaints or of a tense working environment and even, at times, the complete breakdown of working relations. This is not the case here.

7 Secondly, the issues the subject of the disciplinary process are now historic and, indeed, were largely so at the time the first comprehensive report was provided to the plaintiff in April, 2021. The period covered by the report is 1st February to 26th March 2021 and as schools re-opened fully after the Easter holidays teachers were no longer required to teach remotely from April onwards. Whilst the possibility of another lockdown involving school closures and a reversion to on-line teaching and learning cannot be excluded, if this were to arise there would be an opportunity for the Department of Education and the school itself to give further guidance and/or instruction on how the school is to operate during any such period.

8 Thirdly, the plaintiff worked throughout the period during which the disciplinary process was both in contemplation and underway (I will return to the issue of whether the process has actually started below). The plaintiff continues to work in the school notwithstanding that she now faces a disciplinary process involving allegations of serious misconduct which, if established, might lead to her dismissal. Again, this is unusual as most cases in this sector seem to feature teachers who either have been suspended at the instigation of the school or who are absent on long term sick leave, often stress-related, thus obviating the immediate need for a suspension. It is somewhat unusual for an employee to be facing a disciplinary process commencing at a point where dismissal is immediately in prospect whilst remaining fully employed by the employer without any suggestion that a suspension might be warranted.

9 Finally, despite the historic nature of the issues and the fact that the plaintiff continues to be employed in the school, I acknowledge the importance of both the disciplinary process, and of these legal proceedings, to both parties. The plaintiff qualified as a secondary school teacher 22 years ago and has been employed by the school for over 19 years. It is not disputed by the school that she had never been the subject of any complaint from parents or pupils prior to these events. Unsurprisingly,...