The Minister for Education and Skills & anor -v- Boyle & anor, [2018] IESC 52 (2018)

Docket Number:47/17
Party Name:The Minister for Education and Skills & anor, Boyle & anor

THE SUPREME COURTRecord No. 2017/47

Clarke C.J.

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.


The Minister for Education and Skills


The Labour CourtRespondentand

Anne Boyle and Committee of Management of Hillside Park Pre-School

Notice Parties/Respondents

Judgment of Mr. Justice Clarke, Chief Justice delivered the 1st November, 2018

  1. Introduction

    1.1 The unusual triangular or tripartite arrangement whereby much education in Ireland is funded and controlled has given rise to a number of important and difficult legal questions over the years. The practical manner in which that system operates is not in dispute, but the legal rights and obligations which derive from it have given rise to difficult issues. While it will be necessary to refer to the facts of this case in due course and while there is one aspect of the relationship between the parties to this case which is, perhaps, somewhat different to what might be described as an entirely typical situation in the field, nonetheless the broad system applies in a very great number of situations within the State-funded educational system.

    1.2 At its most basic, schools are under the management and day-to-day control of management boards or the like, although the precise structure may vary somewhat as and between primary and secondary schools. In very many cases the salaries of all teachers are, however, paid directly by the applicant/appellant (“the Minister”) with the terms and conditions of employment being agreed from time to time between the Minister and representatives of teachers, or, in the absence of such agreement, being fixed by the Minister. Even in the case of fee-paying secondary schools, a significant number of teachers’ salaries are paid in that way by the Minister with the fees contributed by parents going to additional expenditure, whether relating to the employment of a larger number of teachers than governmental schemes support or additional facilities or courses.

    1.3 At its simplest, the triangular or tripartite system means that, for the purposes of ordinary day-to-day control including hiring, allocation of duties and the like, teachers have their contractual relations with a board of management. The relationship of the majority of teachers (that is, those who are paid by the Minister) with their paymaster can, however, complicate matters to the extent that legal issues can arise as to how to characterise as a matter of law the relationship between a teacher whose salary is paid by the State and the Minister who is responsible for making those payments and, to a very large extent, also fixes the terms on which those payments are to be made.

    1.4 It will again be necessary to set out in somewhat greater detail the way in which courts and other bodies with decision-making power in the employment law field have approached those legal issues. However, the narrow question which arises on the facts of this case concerns the proper legal characterisation of that relationship for the purposes of the Protection of Employees (Part-Time Work) Act 2001 (“the 2001 Act”). In simple terms, the question is as to whether the Minister can be regarded as an employer of the first named notice party/respondent (“Ms. Boyle”) for the purposes of that legislation, or at least for the purposes of that legislation insofar as it relates to financial or pay matters.

    1.5 That question has been before a rights commissioner, the Labour Court, the High Court on judicial review and the Court of Appeal. The decision of the Labour Court was in favour of Ms. Boyle and held that the Minister was an employer for those purposes. Both the High Court and the Court of Appeal refused the Minister an order quashing that decision on the grounds of being erroneous in law. It is as against that decision of the Court of Appeal that the Minister has brought an appeal to this Court. In order to understand the precise basis on which the matter comes before this Court, it is, perhaps, appropriate to start with a brief outline of the course of these proceedings to date.

  2. The Course of the Proceedings to Date

    2.1 In 2009, Ms. Boyle sought access from the Minister to the National School Teachers’ Superannuation Scheme (“the Superannuation Scheme”). This scheme was established under the Teachers Superannuation Act 1928, and provides pension benefits to teachers employed in national schools. The Minister refused access to Ms. Boyle on the basis that she was not a national school teacher employed in a national school. Rather, Ms. Boyle was a qualified secondary teacher who was working as a teacher at Hillside Park, which was a pre-school for children from the traveller community

    2.2 On the 16th March 2009, Ms. Boyle brought a complaint to a rights commissioner seeking that the terms and conditions of the Superannuation Scheme be applied to her. She argued that she was being treated less favourably than what she asserted was a full-time comparator, being a national school teacher working in an “Early Start” unit in a primary school. This unfavourable treatment was said to be contrary to s. 9(1) of the 2001 Act. Ms. Boyle argued in support of this position that she was a relevant part-time employee as she and her comparator shared the same employer, namely the Minister. The rights commissioner concluded that the Minister was not Ms. Boyle’s employer within the meaning of s. 3(1) of the 2001 Act, nor an associate employer within the meaning of s. 7(5) of that Act. For reasons which will become clear, it was essential in the context of this claim that Ms. Boyle and her asserted comparator had the same or an associated employer. The rights commissioner therefore rejected the complaint as not well founded.

    2.3 Ms. Boyle appealed the decision of the rights commissioner to the Labour Court. In its decision, the Labour Court first addressed the issue of whether the Minister ought to be regarded as Ms. Boyle’s employer for the purpose of her complaint. The Labour Court stated that it was bound by the decision of the High Court in Catholic University School v. Dooley [2010] IEHC 496. The Labour Court concluded that, as a consequence of the decision in Dooley, the Minister was to be regarded as Ms. Boyle’s employer. Secondly, the Labour Court considered whether Ms. Boyle and her chosen comparator were engaged in like work for the purposes of s. 9(1) of the 2001 Act. Ultimately, the Court concluded that Ms. Boyle and her comparator were both employed by the Minister, thus satisfying s. 7(2)(a) of the 2001 Act. Furthermore, the Court concluded that Ms. Boyle and her comparator were engaged in work of equal value within the meaning of s. 7(3)(c) of the 2001 Act. Consequently, the Labour Court concluded that Ms. Boyle’s complaint was well founded and that the decision of the rights commissioner ought to be reversed. The Labour Court directed that the Minister should admit her to the Superannuation Scheme, effective from the 21st September 2008, and pay her €10,000 in compensation.

    2.4 The Minister subsequently sought to challenge that decision of the Labour Court by way of judicial review in the High Court, arguing that the Labour Court acted contrary to fair procedures, acted ultra vires, and that it erred in law in concluding that Ms. Boyle and her chosen comparator were both employees of the Minister. It followed, it was said, that the Labour Court was incorrect to direct that Ms. Boyle be admitted to the Superannuation Scheme and also that the Labour Court erred in awarding compensation for discrimination found to have been suffered by Ms. Boyle. The High Court (O’Malley J.) (Minister for Education and Science v. The Labour Court and ors. [2015] IEHC 429) concluded that school teachers whose salaries are publicly funded must be deemed, for the purposes of the 2001 Act, to be employed by the Minister. Consequently, the High Court upheld the finding of the Labour Court to the effect that Ms. Boyle was employed on the same basis as national school teachers, that Ms. Boyle had been treated less favourably than her full-time comparator, and that she was therefore entitled to redress under the 2001 Act. However, the High Court held that the Labour Court was not empowered to order that Ms. Boyle be admitted to the Superannuation Scheme. The matter was remitted to the Labour Court for further consideration as regards the question of compensation.

    2.5 The Minister appealed the above decision of the High Court to the Court of Appeal. The Court of Appeal (Hogan J.) (Minister for Education and Skills v. Anne Boyle and ors. [2017] IECA 39) agreed with the ultimate conclusions of O’Malley J. in the High Court regarding the status of the Minister as employer of both Ms. Boyle and her comparator. In particular, Hogan J. concluded that the relationship between the Minister and Ms. Boyle gave rise to an implied contract of employment between the two parties in relation to pay-related matters. The Court of Appeal further agreed with the High Court in holding that the Labour Court was not empowered to order Ms. Boyle’s admittance to the Superannuation Scheme.

    2.6 While it will be necessary to analyse the reasoning of the various relevant bodies or courts in due course, it is appropriate next to turn to the basis on which the Minister obtained leave to appeal to this Court.

  3. The Grant of Leave to Appeal

    3.1 On the 29th March 2017, the Minister applied for leave to appeal to this Court, which leave was granted on the 19th June 2017 (Minister for Education and Skills v. The Labour Court and ors. [2017] IESCDET 58). The Court granted leave to the Minister to pursue the appeal on the following ground:-

    “[W]hether, in all the circumstances of this case, the Minister can be said to be an employer of Ms. Boyle in relation to pay related matters for the purposes of the 2001 Act.”

    3.2 Ms. Boyle did not seek leave to cross-appeal on the question of admittance to the Superannuation Scheme...

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