Greally v Minister for Education (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 29 January 1999
• Neutral Citation: [1999] IEHC 212
• Docket Number: [1994 No. 6571 P],No. 6571P/1994
• Court: High Court
• Date: 29 January 1999

[1999] IEHC 212

THE HIGH COURT

Geoghegan

No. 6571P/1994

GREALLY v. MINISTER FOR EDUCATION & ORS

BETWEEN

PATRICK ?GREALLY

PLAINTIFF

AND

DEFENDANTS

Synopsis

Constitutional Law

Religion; breach of constitutional rights; Catholic school system; plaintiff claimed that the operation of a supplementary panel scheme effectively prevented him from pursuing a career as a secondary school teacher in the catholic school system; whether there was power to establish that scheme; whether the scheme infringed Art. 44.2.3 of the Constitution; whether the scheme was haphazard, arbitrary and unfair; whether the Minister for Education had infringed the Constitutional right to earn a livelihood and had done so without statutory authority

Held: Claim dismissed as it was ill-founded

(Greally v. Minister for Education - High Court: Geoghegan J. - 29/1/1999)- [1999] 1 IR 1 - [1999] 2 ILRM 296

The State cannot impose conditions on the funding of secondary teachers' salaries which would effectively destroy the denominational nature of schools requiring such funding. In this case, the plaintiff was a Catholic secondary school teacher. He claimed his career prospects had been damaged because of his inability to get onto a supplementary panel of teachers from which the Catholic schools employed some of their staff. The plaintiff was unable to get onto the panel because he did not have sufficient length of experience teaching in Catholic schools. His counsel claimed there was no power to establish the panel. He said it was haphazard, arbitrary and unfair, and infringed Article 44.2.3 of the Constitution. He claimed the Minister had infringed the plaintiff's constitutional right to earn a livelihood, without statutory authority. The court found that the supplementary panel was not established by the Minister. It said the panel system was not based on religion, profession, belief or status and that conditions for membership of the panel were objective and reasonable and did not infringe the Constitution. The plaintiff had failed to get on the panel because of his own inability to secure temporary employment in Catholic schools. A right to a particular livelihood did not mean a right to employment by a particular employer, and the plaintiff's right to earn a livelihood was not infringed.

1 Mr. Justice Geoghegandelivered the 29th day of January, 1999.

2 The Plaintiff is a second level teacher and a practising Roman Catholic. He complains that as a consequence of a scheme which he says is unconstitutional and of allegedly unconstitutional behaviour on the part of the Minister for Education, he is unable to pursue a career as a teacher in the Catholic school system notwithstanding that he has the normal qualifications and in his view the necessary experience and that he is a practising member of the Catholic religion.

3 At first sight such a state of affairs, if proved, would appear to be extraordinary and anomalous to a degree that a prima facie case of unconstitutionality might seem to arise. It ishowever necessary to examine the historical context and circumstances in which the matters complained of by the Plaintiff arise.

4 The Catholic school system in Ireland at secondary level for the most part consists of privately owned and managed schools. The vast majority of these schools are owned by religious orders or church authorities. If it was not for special limiting arrangements made, these schools would be free to employ teachers as they pleased. The evidence establishes and even in the absence of evidence it would be perfectly obvious that the owners of these schools in selecting teachers would have as one of their concerns the maintenance and protection of the Catholic ethos within the school. The theoretical freedoms of the Catholic owners and managers of secondary schools to which I have referred are in practice limited by two factors in particular. One is the normal pressure of trade union activity. Clearly the Association of Secondary Teachers is in a position to wield a considerable amount of power and they have concerns relating to both teacher redundancies and legitimate expectations in relation to entry into the profession. The Catholic managers must take these concerns into account. But the second limitation is that these schools are entirely dependent on the Minister for Education funding at the very least the teachers' salaries. These salaries therefore are paid out of public funds and, that being so, it is entirely legitimate that the State should lay down reasonable conditions for their payment. The two limitations are inter-linked in that the Minister in considering what might be appropriate conditions for payment must obviously take on board the concerns of the Association of Secondary Teachers. But as the Constitution permits denominational education, the Minister as agent of the State must also have regard in imposing conditions for payment to the concerns of the authorities of a particular religion for the preservation of their ethos in their schools. Before I go into the detailed facts of this case it becomes clear even from this brief outline of the situation that there is a finely tunedbalancing act to be performed which may necessarily and perfectly excusably from time to time throw up what might appear to be ananomaly.

5 There is another matter to which I would like to refer at the outset. The Plaintiff's claim that he is effectively prevented or at the very least handicapped from pursuing a teaching career within the Catholic school system was put forward at the hearing on both economic and religious grounds. On the economic front, the Plaintiff claimed that there were far greater career prospects within the Catholic school system than outside of it for a qualified secondary teacher such as himself. That claim corresponded with the pleadings. But it was also put forward at the hearing that because of his religious beliefs and in the light of them he would be anxious to pursue his teaching career in Catholic schools. On a careful appraisal of the Plaintiff's own evidence I am sceptical that this second factor played any part in his motivation that led to the litigation. But at any rate that case was never pleaded. What I think happened was that at the stage the proceedings were instituted the Plaintiff genuinely believed that his career prospects as a teacher were seriously affected due to a scheme of panels which operated and which I will be explaining but that long since the institution of the proceedings the Plaintiff has procured an excellent permanent teaching post in a community school and the evidence does not establish that his long term prospects in the career of teacher are adversely affected by the matters of which he complains. Because he could no longer prove that he was damnified, he laid additional stress on the religious belief aspect but that had never been part of his case as pleaded and I do not propose to entertain it.

6 I now turn to the factual context in which the Plaintiff complained that his career prospects were adversely affected. Some time in the 1980's there was a problem of Catholic schools closing down or being reduced in numbers with the result that teachers were becoming redundant. To give some security and protection to these teachers the Departmentof Education created a panel which is generally known as "The Main Panel" which would consist of these surplus teachers and there would be compulsory re-deployment in relation to them. Subject to certain conditions and suitability of subjects etc. a particular vacancy in a Catholic school would have to be filled by a teacher from the Main Panel who was suitable. An analogous panel known as "The Voluntary Panel" was also established by the Department and gave analogous rights to teachers who wanted to be re-deployed in other schools. Although both of these panels have been referred to and explained in the evidence they are not really relevant to the Plaintiff's claim. But a third panel was established which is relevant. This is known as "The Supplementary Panel". The Department did not as such establish this panel and has no interest one way or another in its maintenance. It was created by and in the interests of the Association of Secondary Teachers with the agreement of the Catholic Managers Association and the Minister. The problem which it was intended to resolve is the following. Cutbacks were made in the funding of education by means of an alteration of the pupil/teacher ratio. In practice, due to expansion in the community school and comprehensive school sectors prospects for young teachers wanting to work in these sectors were not seriously affected. But young teachers with a legitimate expectation of getting permanent posts in the Catholic sector were adversely affected. The Union demanded that at least there would be a priority system so that as vacancies arose, these disappointed teachers subject to suitability would have the first offers of a post in order of seniority. Suitable qualifications however in the particular subjects would be required. Criteria were drawn up for defining teachers who were to be...