High Court of Ireland Decisions

1. There is a secondary convent school for girls situated at Rabercon, New Ross, County Wexford, managed and controlled by members of the order of nuns named as the second respondents in these proceedings. It has not been necessary to consider the details of the management structure of the school or the persons in whom the school property legally vests and I will refer in this judgment to the “respondents” as meaning both the order and its members (the school principals for the time being and the school manager) who were directly concerned in the events which have given rise to these proceedings. The appellant, who is now aged 30 years, was employed as a teacher in the respondents’ school. On the 22nd August, 1982, a letter was written to her by the school manager terminating her position in the school as from the 30th November, 1982. On the 4th March, 1983, she gave notice of appeal to the Employment Appeals Tribunal under the Unfair Dismissals Act, 1977, claiming (i) that her dismissal was unfair and (ii) her reinstatement in the school. The Tribunal’s decision of the 3rd February, 1984, was that the dismissal was not unfair. From this decision the appellant unsuccessfully appealed to the Circuit Court. From the decision of the Circuit Court an appeal has been taken to this Court. The Act confers no express appellate jurisdiction on the High Court, but the respondents have accepted the validity of an earlier High Court decision on the point and agree that an appeal lies. Accordingly I have heard this matter as an ordinary Circuit appeal and will determine it on the evidence adduced at the hearing before me.

2. The basic relevant facts are not really in dispute. The appellant was first appointed to the school in a temporary capacity as a teacher of Irish and History. She commenced her duties in September, 1978. In April, 1979, she was offered and accepted a permanent appointment. The appointment was made in a very informal manner and because of a dispute which then existed no written contract was entered into. There were some complaints about the appellant’s punctuality in the academic year 1979/80 but these were of no great significance and her professional work was found to be of a high standard. But in the academic year 1980/81 the situation deteriorated. Not only were there complaints relating to the quality of her work but, of much more importance, the principal learnt from formal complaints by parents that an association between the appellant and a married man (whose wife had recently left him and who owned a licensed premises in the town) had developed. The principal is a very experienced teacher and administrator and a very balanced and fair-minded person. She would not have taken the steps which she did unless satisfied that what she was told was not mere idle gossip. The matter, in her judgment, was not a trivial one, and she considered that a situation existed which in the light of her responsibilities as she saw them she could not ignore. On the 13th August, 1981, she asked the appellant to come to see her. She informed her that the interview must be regarded as an official one, and she then told her that she was aware that the appellant was having an association with a married man, that this had been the cause of grave disquiet amongst many parents and that unless a remarkable improvement in the unhappy situation took place, the appellant’s contract would be terminated at the end of the school year, 1981/82. The meeting was a very courteous one on both sides. The appellant did not for a moment deny that she was having an association with a married man but she indicated that she regarded this as her own affair and of no concern either to the parents or the school authorities. The principal agreed in evidence that apart from referring in their first interview to the fact that the school was a Roman Catholic school she had made no reference to the appellant’s private life before this interview. But she knew that the appellant had been brought up in the Roman Catholic faith and in tier view she must have been aware of her obligations to the school and so she considered herself justified in imposing on the appellant the requirements which she did.

3. A new principal took over in September, 1981, but the appellant was left in no doubt that the position remained unchanged. The new principal interviewed her and asked her to confirm as correct a written record of the August meeting. The appellant stated that she had received advice that she should sign nothing, but verbally confirmed the accuracy of what was read over to her. She was told that the new principal would keep a file on the situation and so it must have been perfectly clear to her that, whether rightly or wrongly, the respondents would terminate her contract if she did not terminate the association to which they objected. She chose not to do so. Indeed a new development in it occurred in the following November when the appellant moved into the dwelling accommodation attached to the licensed premises where her friend lived with his three young children and has openly lived with him there since.

4. In the months following their first interview the new principal had occasion formally to draw the appellant’s attention to her non-attendance at classes and her failure to give notice of inability to attend. It is unnecessary for me to detail these complaints here. Of immediate relevance to the issues in this case is an interview which took place on the 15th March, 1982, at which the appellant was asked whether it was true that she was pregnant. She emphatically denied that this was the case, whilst freely admitting that the relationship which had been referred to the previous year was still continuing. But she was very troubled about the situation, and she explained how torn and wrecked she felt and that she was contemplating leaving the town altogether. She asked the principal to pray for her. On the 2nd April. the principal again referred to the parents’ concern at the fact that they believed that the appellant was pregnant. She again denied the suggestion. but said that she was going home for the week-end to have a long think about her position. On the 20th April, in a most distressing and emotional interview she finally admitted that she was pregnant. She explained that she thought her baby was due in July, and that she was thinking of going to France or England for the birth. The principal offered to help in any way she could, urging her not to go to France and offering to contact her brother (a priest in London) who might be able to help. This the principal did, and later in the week told the appellant that arrangements could be made to look after her and her baby in London and that she could stay in Dublin in (the principal’s) mother’s house on the way to the airport. In case this narrative might suggest otherwise, I should make it clear that the principal was acting out of compassion and sympathy for the appellant; and had no ulterior motive; neither she nor her counsel have suggested otherwise in this Court. She wanted to he of practical assistance and pressed the appellant to obtain medical help immediately and informed her of her rights to maternity leave.

5. The contract of employment was made on behalf of the school authorities by the school manager, and on the 29th April a meeting between the school manager and the appellant took place. It began by the appellant asking her “are you going to dismiss me?”, but she was told that the manager had come to discuss the situation with the appellant. It was obvious that the appellant was under great strain and no final resolution of the situation then occurred. The manager explained the religious nature of the school, referred to the rights of the parents of children at the school and the concern expressed by them at the situation, making it clear that if the appellant did not change what she termed her “life-style” that her position in the school would be untenable. For her part, the appellant quite frankly admitted that she was living with a married man, that she loved him and that she would not leave him.

6. The day after this interview the appellant called on the principal and told her that she had decided to have her baby in London and did not convey her change of mind in this connection until early in June. The principal received a telephone call on the 9th June informing her that the baby had been born the previous day. On the 6th August the appellant was told that if she did not resign that she would have to be dismissed. As she did not do so, the manager wrote to her on the 22nd August. It is admitted that this letter accurately sets out what happened at the interview of the 6th August between the manager and the appellant. In addition it explains why the respondents dismissed the appellant. I should refer to it in some detail.

7. Having referred to the meeting and expressed her thanks for the appellant’s willingness in coming to see her and her view that as school manager she was required to give “primary consideration to the interests of our pupils” the manager wrote:—

8. Having noted her decision not to resign, and having referred to her conduct as being “fundamentally inconsistent” with her position as a teacher in the school the letter terminated the appellant’s employment with effect from the 30th November following. A cheque for £2,026 was enclosed with it and it contained a request that “in the interests of the pupils” the appellant would not attend school when it opened in early September. On the 29th August the appellant told the principal that on the advice of her solicitor she would contest the manager’s decision and on the 28th February following, notice of claim under the provisions of the Unfair Dismissals Act, 1977, was served.

9. I can briefly outline the statutory provisions under which this claim is brought.

10. The Act of 1977 contains a new and self-contained code of rights and remedies in cases in which an employee to which the Act applies is “unfairly dismissed”, as defined. When an employer terminates a contract of employment this is deemed to be a “dismissal” (s. 1), and every dismissal is deemed to be unfair unless “having regard to all the circumstances there were substantial grounds justifying the dismissal” (s. 6, sub-s. 1). The main and substantial issue in this case is whether in all the circumstances it can be said that the respondents had substantial grounds for terminating the appellant’s employment in their school. But this is not the only one. The appellant relies on a provision of the Act by which a dismissal of an employee shall be deemed to be unfair if it results wholly or mainly from the pregnancy of the employee or matters connected therewith (s. 6, sub-s. 2 (f)) and before going any further I will deal with that point now. It seems to me to be perfectly clear that in this case the appellant’s dismissal did not “result” from her pregnancy or matters connected with it and that the sub-section to which I have referred does not assist her case. It resulted from the appellant’s refusal to terminate a relationship of which the respondents had complained long before the fact of her pregnancy was known to them. No doubt the pregnancy confirmed (if a confirmation was needed) the nature of the relationship, but the warning of dismissal had been given before such confirmation had been obtained and had it continued, dismissal would have occurred in any event.

11. On the main issue I was referred by counsel to Spiller v. Wallis Ltd. (1975) IRLR 362; Cassidy v. Goodman Ltd. (1975) IRLR 86; Whitlow v. Alkanet Construction Ltd. (1975) IRLR 321; Treganowan v. Robert Knee &Co. Ltd. (1975) IRLR 247; Nottinghamshire Co. Co. v. Bowly (1978) IRLR 252; Newman v. Alarmco Ltd. (1976) IRLR 45 and Wiseman v. Sa/ford CityCouncil (1981) IRLR 202.

12. Whilst these cases are not directly in point they do assist by showing that under corresponding English legislation a rigid line is not drawn between private sexual behaviour outside the place of work (which can never be used to justify a dismissal), and conduct in the place of work (which may do so). One of the principles they illustrate (and indeed it is one accepted as applicable to the provisions of the 1977 Act) is that an employee’s conduct in sexual matters outside the place of employment may justify dismissal if it can be shown that it is capable of damaging the employer’s business.

13. Of more immediate relevance is a decision of the Supreme Court of Canada, in Re Caldwell and Stuart (1985) 15 D.L.R. (4th) 1 to which I was also referred. This was a case in which the contract of employment of a Roman Catholic teacher in a Roman Catholic school was not renewed after she had married a divorced man in a civil ceremony. She then instituted proceedings by means of a complaint to the British Columbia Board of Human Rights. At issue in the case was whether or not it was contrary to the Human Rights Code of British Columbia for a denominational school to refuse to employ a teacher who had personally disregarded the teaching of the Church. Section 8 of the Code (on which she relied) deals with equality of opportunity with respect to employment and freedom from discrimination and the case turned on an interpretation of that section. It is obviously different to the provisions of the 1977 Act which falls for consideration in the present case, but some of the observations in the judgment of the Supreme Court are relevant as they deal with the reasonableness of the requirement that Roman Catholic teachers should conform to the religious tenets taught in a Roman Catholic school and to the difference between a secular and a religious school in such matters. In this connection it was pointed out that the test was this: “Is the requirement of religious conformance by Roman Catholic teachers, objectively viewed, reasonably necessary to assure the accomplishment of the objectives of the Church in operating a Roman Catholic school with its distinct characteristics for the purposes of providing a Roman Catholic education for its students?” In answering this question in the affirmative McIntyre J., in delivering the judgment of the Court said at p. 18:—

14. Holding that the requirement to conform was a reasonable one, that the qualification imposed for employment in the school was a bona fide one, the Supreme Court held that the Board had been correct in holding that no breach of the Code had been established.

15. I come now to consider whether, hearing in mind that the onus of proof is on the respondents, it can objectively be said that there were substantial grounds which justified the dismissal in all the circumstances of this case.

16. The gravamen of the respondents’ complaint against the appellant is, in the words of the letter of the 6th August, 1982, that the appellant openly rejected the norms of behaviour and the ideals which the school existed to promote. The appellant has not contested, as a matter of principle, the right of school authorities to dismiss a teacher who openly rejects its norms and ideals. Nor has she denied that she is living by a code of conduct which is different in important respects from that which the school has been established to foster and instill in its pupils. Her claim is that her private life is her own affair and that there has been no “open” rejection by her of the school’s norms, as alleged.

17. In adjudicating on this dispute it is important to appreciate that two of the important circumstances in which the dismissal occurred are these. Firstly, the appellant was employed in a religious, not a lay, school and the evidence establishes that such a school has long established and well known aims and objectives as well as requirements for its lay staff which are different to those of a secular institution. Secondly, the evidence establishes that the dismissal occurred not as a punishment for breach of a code of conduct taught in the school, but arising from an assessment made of the effect on the school and its pupils of a continued breach of that code by the appellant. In making their assessment the respondents were, it seems to me, entitled to take into account that the appellant’s association was carried on openly and publicly in a country town of quite a small population; that within a short period of time it would have been common knowledge in the town (a) that the appellant was associating on a regular basis with a member of the town’s business community whose wife had recently left him, (b) later, that she had commenced to live with him as man and wife, and (c) that she had a child by him. But what is more to the point, the respondents were entitled to conclude that these facts must have become known to many if not all the pupils in the school, and that they would regard her conduct as a rejection of the norms of behaviour and the ideals which the school was endeavouring to instill in and set for them. I do not think that the respondents over emphasised the power of example on the lives of the pupils in the school and they were entitled to conclude that the appellant’s conduct was capable of damaging their efforts to foster in their pupils norms of behaviour and religious tenets which the school had been established to promote. In these circumstances they had substantial grounds for dismissing her.

18. Finally, the appellant submitted that as there was no express term in her contract of employment bearing on her private life or requiring her adherence to a particular moral code and as none is to be implied, then the dismissal is unfair because she was under no contractual obligation to act as the respondents had required of her. The contract of employment in this case was a very informal one. But because of the view I take of the 1977 Act it is unnecessary for me to decide what, if any, implied terms it contained. Undoubtedly, in certain circumstances it could be unreasonable to dismiss an employee for conduct which is not prohibited by the terms of the contract of employment. But in considering a claim under the Act the test is: in all the circumstances were there substantial grounds to justify the dismissal? and not: was the conduct relied on to justify the dismissal prohibited by contract? In reaching a conclusion on this issue the terms of an employee’s contract are part of, but only part of, the overall circumstances to be considered by the Court. In the present case, the appellant knew from her own upbringing and previous experience as a teacher the sort of school in which she sought employment, and should have been well aware of the obligations she would undertake by joining its staff. Even if the contract of employment was silent on the point, (a), she must have known that objection could be taken that her conduct violated her obligations to the school and, (b), she was in any event given an opportunity to alter it. It cannot therefore be said that in this case the absence of an express or implied contractual term relevant to the matters of complaint tainted with unfairness a dismissal which otherwise was justified.

19. I must therefore dismiss this appeal.