The Boards of Management of Scoil an Chroí ro Naofa íosa v Donnelly

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 02 November 2020
• Neutral Citation: [2020] IEHC 550
• Docket Number: [RECORD NO. 2019 348 MCA]
• Court: High Court
• Date: 02 November 2020

IN THE MATTER OF SECTION 34 OF THE MATERNITY PROTECTION ACT 1994

BETWEEN:

THE BOARDS OF MANAGEMENT OF SCOIL AN CHROÍ RO NAOFA ÍOSA, ST PATRICK'S SENIOR NATIONAL SCHOOL, SACRED HEART OF JESUS NATIONAL SCHOOL, SCOIL NA MAINSTREACH, ASSUMPTION GIRLS’ NATIONAL SCHOOL, SCOIL CHAITRÍONA JUNIOR, NORTH DUBLIN NATIONAL SCHOOL PROJECT AND SCOIL THOMAIS

AND

THE MINISTER FOR EDUCATION AND SKILLS

APPELLANTS

AND

HELEN DONNELLY, CIARA FITZGERALD, DOIREANN SHERIDAN, SINEAD FAGAN, CLAIRE BROWNE, GRAINNE MURRAY, SARAH GROGAN, ROISIN DOOLEY

AND

ALMA BRADY

RESPONDENTS

[2020] IEHC 550

Niamh Hyland

[RECORD NO. 2019 348 MCA]

THE HIGH COURT

Summary judgment – Contracts – Maternity Protection Act 1994 s. 22(4) – Appellant appealing against a decision of the Employment Appeal Tribunal whereby it upheld a complaint by the respondents – Whether the Employment Appeal Tribunal made an error of law in finding that s. 22(4) of the Maternity Protection Act 1994 was breached

Facts: The appellant, the Minister for Education, appealed to the High Court against a decision of the Employment Appeal Tribunal of 23 October 2019 whereby it upheld a complaint by nine teachers who, by virtue of the introduction of a circular governing maternity leave in 2013 (Circular 0009/2013), were obliged to take leave accruing to them during their maternity leave during school closure periods rather than during term time. They objected to this on the basis that the 2013 Circular was introduced when all of them were already pregnant and had notified their schools of their pregnancy. Indeed, one was already on maternity leave at the time of the introduction of the Circular. They argued that their rights existing under the previous circular (Circular 0011/2011) that allowed such leave to be taken during term time, could not be removed by the 2013 Circular, given that they had an expectation their maternity leave for the extant pregnancies would be governed by the 2011 Circular. The nine teachers lost before the Rights Commissioner but succeeded before the Tribunal on the basis that the new arrangement introduced by the 2013 Circular constituted a breach of s. 22(4) of the Maternity Protection Act 1994. The Minister, who took over the proceedings from the various Boards of Management, appealed on the following point of law: “The correct interpretation of section 22(4) in the case of the nine Respondents, teachers employed in recognised schools, and, in particular the question of whether, in the case of such teachers, all periods of school closure qualify as “other leave (including sick leave or annual leave) to which the employee concerned is entitled” for the purpose of the said section”.

Held by Hyland J that if the Tribunal’s (unstated) justification for finding the 2013 Circular unlawful was because requiring accumulated leave to be taken during school closure days meant that s. 22(4) would inevitably be breached, then she was satisfied this was an error of law; this was because it was not the case made by the teachers, there was no legal basis identified for such a conclusion and it was incompatible with the evidence before the Tribunal, in particular the 2011 Circular, the 2013 Circular, the Circulars on parental leave and sick leave, and the Croke Park Agreement. Hyland J held that, whether one treats the finding of breach of s. 22(4) as being based on an assumption that the entirety of school closure was annual leave or based on some other assumption, the Tribunal had made an error of law.

Hyland J held that the Tribunal made an error of law in finding that s. 22(4) was breached. She held that she would quash the decision of the Tribunal of 23 October 2019 and remit the matter back to whatever composition of the Tribunal were in a position to adjudicate on same, given that the Tribunal was in run off mode.

Decision quashed and remitted to Tribunal.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 2 November 2020

Introduction

1 This is an appeal by the Minister for Education against a Decision of the Employment Appeal Tribunal (the “Tribunal”) of 23 October 2019 whereby it upheld a complaint by nine teachers who, by virtue of the introduction of a circular governing maternity leave in 2013 (Circular 0009/2013 hereafter described as the “2013 Circular”), were obliged to take leave accruing to them during their maternity leave during school closure periods rather than during term time. They objected to this on the basis that the 2013 Circular was introduced when all of them were already pregnant and had notified their schools of their pregnancy. Indeed, one was already on maternity leave at the time of the introduction of the Circular. They argued that their rights existing under the previous circular (Circular 0011/2011, hereafter described as the “2011 Circular”) that allowed such leave to be taken during term time, could not be removed by the 2013 Circular, given that they had an expectation their maternity leave for the extant pregnancies would be governed by the 2011 Circular.

2 The nine teachers lost before the Rights Commissioner but succeeded before the Tribunal on the basis that the new arrangement introduced by the 2013 Circular constituted a breach of s.22(4) of the Maternity Protection Act 1994 as amended (the “1994 Act”).

3 The Minister (who took over the proceedings from the various Boards of Management) has appealed on the following point of law:

“The correct interpretation of section 22(4) in the case of the nine Respondents, teachers employed in recognised schools, and, in particular the question of whether, in the case of such teachers, all periods of school closure qualify as “other leave (including sick leave or annual leave) to which the employee concerned is entitled” for the purpose of the said section”.

4 For the reasons set out in this judgment, I am satisfied that the Tribunal made an error of law in finding that s.22(4) of the 1994 Act was breached and I am accordingly remitting the matter back to the Tribunal.

Jurisdiction of the Court:

5 This is an appeal on a point of law pursuant to s. 34 of the 1994 Act, which provides as follows:

34.-(1) …

(2) A party to proceedings before the Tribunal under this Part may appeal to the High Court from a determination of the Tribunal on a point of law.

6 The ambit of an appeal on a point of law has been comprehensively described in Attorney General v. Davis[2018] 2 I.R. 357, following Fitzgibbon v. Law Society[2015] 1 I.R. 516, as including errors of law as generally understood, errors such as would give rise to judicial review, procedural errors of some significance, errors in the exercise of discretion that were plainly wrong notwithstanding the latitude inherent in such exercise and errors of fact in very limited circumstances.

Relevant legislative provisions

7 There are four legal instruments potentially relevant to the Decision of the Tribunal, two EU Directives and two national implementing provisions. The first is Directive 92/85/EEC of 19 October 1992 (the “Pregnancy Directive”). This Directive was designed to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth. Article 8 deals with maternity leave and identifies that workers are to be entitled to a continuous period of at least 14 weeks maternity leave. Article 11 (headed up “Employment rights”) provides in relevant part:

In order to guarantee workers within the meaning of Article 2 the exercise of their health and safety protection rights as recognised in this Article, it shall be provided that:

2. in the case referred to in Article 8, the following must be ensured:

(a) the rights connected with the employment contract of workers within the meaning of Article 2, other than those referred to in point (b) below;

(b) maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2;

8 The Pregnancy Directive was implemented in Ireland by the 1994 Act. Section 22(4) of the 1994 Act, found by the Tribunal to have been breached, prohibits a period of absence from work while on protective leave (which includes maternity leave) from being treated as part of any other leave (including sick leave or annual leave) to which the employee is entitled.

9 The second Directive is Directive 93/104/EC of 23 November 1993 on the organisation of working time (the “Working Time Directive”).Article 7 provides that Member States should take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks.

10 That was implemented in Ireland by the Organisation of Working Time Act 1997 as amended, which provides at s.19(1) that each worker is entitled to paid annual leave equal to four working weeks for each leave year.

11 In Case C-342/01Gomez [2004] ECR I-02605, the Court of Justice held that the purpose of the entitlement to annual leave is different from that of the entitlement to maternity leave, which protects a woman's biological condition during and after pregnancy and the special relationship between a woman and her child over the period following pregnancy and childbirth. It concluded that Article 7 of the Working Time Directive must be interpreted as meaning that where the dates of a worker's maternity leave coincide with those of the entire workforce's annual leave, the requirements of the Directive relating to paid annual leave could not be regarded as met. It further referred to Article 11(2)(a) of the Pregnancy Directive and noted that the entitlement to paid annual leave must be ensured in the case of maternity leave. The Court went on to refer to Article 5(1) of Directive 76/207 on equal treatment, interpreting it as meaning that a worker must be able to take her annual leave during a period other than the period of her maternity leave, even where the period of maternity leave coincides...