Minister for Education and Skills v Boyle

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 24 February 2017
• Neutral Citation: [2017] IECA 39
• Date: 24 February 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 39 Appeal Nos. 2015/447

[2017] IECA 39

THE COURT OF APPEAL

Hogan J.

Finlay Geoghegan J.

Peart J.

Hogan J.

Neutral Citation Number: [2017] IECA 39

Appeal Nos. 2015/447

BETWEEN/

THE MINISTER FOR EDUCATION AND SKILLS

APPELLANT

- AND -

ANNE BOYLE

RESPONDENT

- AND -

THE LABOUR COURT

and

THE MANAGEMENT COMMITTEE OF HILLSIDE PARK PRESCHOOL

NOTICE PARTIES

Judicial review – Employment – Teachers – Appellant seeking to quash a determination of the respondent that the first notice party was an employee of the appellant – Whether appellant is the employer of a part-time pre-school teacher for the purposes of the Protection of Employees (Part Time Work) Act 2001

Facts: The appellant, the Minister for Education and Skills, commenced judicial review proceedings in the High Court in order to quash a determination of the respondent, the Labour Court, by which that body decided that the first notice party, Ms Boyle, was an employee of the Minister within the meaning of the Protection of Employees (Part Time Work) Act 2001, and that she had been treated less favourably than a full-time comparator in relation to pension rights. The Labour Court further directed that the Minister should admit her to the National Teachers Superannuation Scheme with effect from six months before the initiation of her claim and pay her a sum of €10,000 by way of compensation for discriminating against her. The Minister sought to quash the decision of the Labour Court on the ground, essentially, that the Minister had no contractual relationship with Ms Boyle and was not her employer within the meaning of the 2001 Act. For her part, Ms Boyle sought to uphold the conclusions of the Labour Court. Ms Boyle also maintained that judicial review was not a proper avenue of redress, in that the Minister also lodged an appeal on points of law, as provided for by the Act, but had not progressed that appeal pending the outcome of the judicial review. The Minister stated that judicial review, rather than the statutory process, was pursued because the decision of the High Court on a point of law would be final, whereas judicial review left open the possibility of an appeal to the Court of Appeal. The appellant appealed to the Court of Appeal from the decision of the High Court (O’Malley J).

Held by Hogan J that the High Court was correct to hold that Ms Boyle was an employee of the Minister in relation to pay-related matters pursuant to an implied contract of employment within the meaning of the 2001 Act, even if she was not so employed for other purposes; it followed, therefore, that the High Court was entitled to conclude that although Ms Boyle was not a national school teacher, or a teacher in a recognised school, she was employed on the same basis as such teachers and she was found to have been treated less favourably than full-time teachers doing comparable work. Hogan J held that the comparator was also an employee of the Minister. Hogan J held that Ms Boyle was therefore entitled to redress under the 2001 Act. Hogan J held that the High Court was also correct to rule that the Labour Court was not empowered to order that Ms Boyle be admitted to the national teachers superannuation scheme, since this in effect amounted to a direction to the Minister to change or alter the terms of the 1934 statutory instrument governing the superannuation scheme for teachers.

Hogan J held that, in the circumstances, it was not necessary to express any view on whether the Minister was entitled to proceed by way of judicial review.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 24th day of February 2017

1 It may seem remarkable that some 185 years after the dispatch of the famous Stanley letter in October 1831 (so called after the name of the British Chief Secretary for Ireland who sent it) establishing the modern system of primary education in Ireland that the question of who the employer of a national teacher actually is remains unclear. That this is so is perhaps all the more surprising given that in the meantime we have had the establishment of the State in 1922, the establishment of the Department of Education in 1924 following the enactment of the Ministers and Secretaries Act 1924, the enactment of the Constitution in 1937 and the enactment of the Education Act 1998 (with subsequent amendments thereafter). Yet all of these events - which in themselves have all had significant implications for the system of primary education – have come and gone without, it seems, clarifying this question.

2 It is this question, however, which is nonetheless presented in this appeal from the decision of the High Court (O'Malley J.): see Minister for Education and Science v. Labour Court [2015] IEHC 429. Specifically, the question more particularly is whether the Minister of Education is the employer of a part-time pre-school teacher for the purposes of the Protection of Employees (Part Time Work) Act 2001 (‘the 2001 Act’). The matter arises in the following way:

3 The appellant, the Minister for Education and Skills (‘the Minister’), commenced judicial review proceedings in the High Court in order to quash a determination of the respondent (‘the Labour Court’) by which that body decided that the first named notice party (‘Ms Boyle’) was an employee of the Minister within the meaning of the 2001 Act, and that she had been treated less favourably than a full-time comparator in relation to pension rights. The Labour Court further directed that the Minister should admit her to the National Teachers Superannuation Scheme with effect from six months before the initiation of her claim and pay her a sum of €10,000 by way of compensation for discriminating against her.

4 The Minister sought to quash the decision of the Labour Court on the ground, essentially, that the Minister had no contractual relationship with Ms. Boyle and was not her employer within the meaning of the 2001 Act. For her part, Ms. Boyle has sought to uphold the conclusions of the Labour Court.

5 Ms. Boyle has also maintained that in the present case judicial review is not a proper avenue of redress, in that the Minister has also lodged an appeal on points of law, as provided for by the Act, but has not progressed that appeal pending the outcome of the judicial review. The Minister has rather candidly stated that judicial review, rather than the statutory process, has been pursued because the decision of the High Court on a point of law would be final, whereas judicial review left open the possibility of an appeal to this Court.

6 Before proceedings to examining these questions, it is necessary first to recount the background to these proceedings.

The background to the proceedings

7 Ms. Boyle was recruited and employed as a teacher in a grant-aided pre-school for the children of members of the travelling community for over 20 years, until it was closed in 2011. A grant amounting to 98% of the salary payable to a primary school teacher was paid by the Minister to the management committee of the preschool in respect of her salary. Ms. Boyle was the only teacher in the preschool and she worked 15 hours per week.

8 On the 16th March 2009, Ms. Boyle made a complaint to the Rights Commissioner service pursuant to the provisions of the 2001 Act, claiming that she was treated less favourably than full-time workers by not being admitted to the National Teachers Superannuation Scheme. The complaint named both the Chair of the management committee and the Department of Education and Science (‘as her employer’). In making her case, she chose as her comparator a National School teacher who worked in an Early Start unit in a primary school.

9 By 2011 the policy regarding pre-school traveller education had changed. When the Hillside Park pre-school was opened, there were relatively few pre-schools and this particular pre-school was designed to benefit traveller children. By the 2000s, all of this had changed and pre-schools attended by the bulk of the early school going population were common. In consequence the Minister decided that the special pre-schools (such as Hillside) should be closed and that there should no longer be special pre-school education for traveller children.

10 Before this complaint could be processed, however, Ms. Boyle was made redundant in consequence of the closure. The Minister made the redundancy payment, albeit that this Court was informed at the hearing of this appeal that the payment was first made to the (now defunct) Management Committee of Hillside School with a view to payment on to Ms. Boyle.

11 After a hearing in January 2011 the Rights Commissioner upheld the arguments made on behalf of the Department of Education and Science, concluding that it was neither the employer of Ms. Boyle within the meaning of s.3(1) of the 2001 Act nor an associate employer within the meaning of s.7(5) of the same Act. No finding was made in respect of the management committee. This decision was then appealed to the Labour Court.

12 Before examining the decision of the Labour Court, I should digress briefly to set out the relevant terms of the 2001 Act, given that the Labour Court's decision turns on its interpretation of this legislation and, furthermore, that the terms of this legislation are critical to the determination of this appeal.

Statutory context - Protection of Employees (Part Time Work) Act 2001

13 The long title of the 2001 Act states that it is to provide for, inter alia, the implementation of Directive 97/81/EC of 15 December 1997 (‘the part-time workers Directive’). Section 9 of the 2001 Act lays down the general principle that a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee. This general principle does not apply where such treatment can be justified on objective grounds.

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