High Court of Ireland Decisions

1. 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.

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 constitutionality might seem to arise. It is however necessary to examine the historical context and circumstances in which the matters complained of by the Plaintiff arise.

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 tuned balancing act to be performed which may necessarily and perfectly excusably from time to time throw up what might appear to be an anomaly.

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.

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 Department of 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 finding 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 entitled to be in the Supplementary Panel. Since this meant that in certain circumstances the Catholic schools would be compelled to take on a particular teacher, the Catholic Managers Association was naturally concerned to ensure that there was some mechanism whereby it could control the protection of the Catholic ethos.

The following rules were therefore drawn up for membership of the Supplementary Panel. These are:

1. The teacher is a registered secondary teacher.

2. The teacher is in receipt of payment for teaching for a minimum of 18 hours per week in either a temporary or part-time capacity in a Catholic school.

3. The teacher has taught for the minimum number of hours for two school years or more in the same school or for three school years or more in separate schools.

4. The teacher must have had his or her teaching monitored by the school authorities who will be required to certify to the Administrator under the scheme that the teacher has given satisfactory service.

The Plaintiff instituted these proceedings on 25 October, 1994. As of that date his teaching experience was as follows:-

1. Franciscan College, Gormanston, County Meath from October 1991 until February 1992.

2. Tarbert Comprehensive School from August 1992 until July 1993.

3. Sacred Heart Secondary School, Thurles from August 1993 until July 1994.

4. Lackencross Vocational School from September 1994.

Since the institution of proceedings the Plaintiff's teaching experience has been the following:-

1. Continued teaching in Lackencross Vocational School until August 1995.

2. Moune Road, Drimnagh from August 1995 until 1996.

Moate Community School from August 1996 until the present time.

All the above teaching posts were temporary until 9 October, 1998 when the Plaintiff obtained a post as a full-time secondary teacher of Irish and French at Moate Community School. From the said listing, it is clear that the Plaintiff did not qualify for the Supplementary Panel because he did not teach for two years in the same Catholic school or for three years between different Catholic schools. Furthermore, there were problems about the hours of working in Mourne Road. In so far as the Plaintiff alleges that at any material time he was unaware of the system established by the scheme I reject that evidence. I do not mean by that that I am necessarily saying that he knew every detail or indeed had read all the small print. But I believe that he must have been aware in broad terms of the panel system and of what was required to get himself into the Supplementary Panel. No real case of inadequate promulgation has been made and I am impressed by the evidence of Mr Lennon, the General Secretary of the Association of Secondary Teachers of Ireland that there is constant information being sent to teachers in their regular bulletins etc. I had the impression that he thought it inconceivable that the Plaintiff would not have been aware of the Supplementary Panel system and of its requirements in a broad sense at any rate if not all the precise details. Furthermore, it is clear from the evidence that the Plaintiff did in fact apply on a regular basis to Catholic schools for temporary posts. For some reason or other he was unfortunate in his applications and simply failed to get the requisite posts.

Under the terms of the scheme if one is to so describe the Supplementary Panel rules, every secondary teacher in Ireland is in an equal position in the sense that each is eligible for membership of the panel provided he or she fulfils the conditions. For instance, it is not necessary that a teacher be a Roman Catholic, still less a practising Roman Catholic. The evidence established and indeed it would be at any rate common knowledge that there are many non-Roman Catholic teachers and non-practising Roman Catholic teachers in Roman Catholic schools. But the Catholic schools can protect their ethos by not employing as a temporary teacher somebody who for one reason or another might be a threat to that ethos. To achieve membership of the panel, a teacher has to be able to persuade a Catholic school or Catholic schools to employ him or her for the requisite period. The Plaintiff was unable to get himself appointed to temporary posts which would qualify him. That is the real reason why he is not a member of the Supplementary Panel but such a reason is not discriminatory in a constitutional sense. I should mention at this stage that the evidence also established that very special and favourable arrangements were put in place for Protestant schools and their teachers at the time of the pupil/teacher ratio cutbacks which gave rise to the Supplementary Panel.

Counsel for the Plaintiff, Mr Hogan, nevertheless attacks the Supplementary Panel system on a number of grounds. These are:-

1. That there is no power to establish the scheme.

2. That the scheme infringes Article 44.2(3) of the Constitution.

3. That the panel system is haphazard, arbitrary and unfair.

4. That the Minister has infringed the constitutional right to earn a livelihood and has done so without statutory authority.

I will deal with each of these points in turn. The alleged absence of a power to establish the so-called scheme begs a number of questions. First of all, Mr Bracken, Principal Officer in the Post-Primary Section of the Department of Education, made it clear in evidence that the Supplementary Panel cannot be described as a scheme established by the Minister and I accept his view on this. The Minister has no interest in maintaining the Supplementary Panel. The Minister has however agreed at least by implication that he will not pay the salary of a teacher appointed from outside the Supplementary Panel in circumstances where there was a suitable teacher for appointment within the panel. But this is an arrangement arrived at between the Minister and the Secondary Teachers Association of Ireland in the normal course of industrial relations discussions. It is for the purpose of securing jobs for persons who rightly or wrongly are perceived as persons who ought to get the first opportunity. But what complicates the matter is that the Catholic Headmasters Association had their own input into the drafting of the conditions for membership of the Supplementary Panel. This was for the purposes of maintaining the Catholic ethos perceived as essential by the Catholic Managers if Catholic denominational schools were to be maintained. Obviously there might have been different ways of achieving this and no-one could argue that the particular method used in this case is the only possible method but I think that in all the circumstances it is a reasonable compromise arrangement and does not infringe the Constitution. By contrast, if the Catholic Headmasters had been compulsorily forced to accept the Supplementary Panel system without their having any control whatsoever as to the kind of teacher that would emerge from that panel, the Minister would in those circumstances have been open to constitutional attack as effectively undermining the right to denominational education. But of course the Plaintiff is only raising this issue because he finds himself unable to become a member of the panel. If the conditions of membership had been different and embraced any teacher who was a practising Catholic such as the Plaintiff, he would have had no complaint. His grievance that as a practising Catholic teacher with considerable experience, he is to a large extent impeded from getting into the Catholic school system because of his inability to become a member of the panel is understandable. I had thought it extremely odd when the case was opened before me. But on reflection, I think that the conditions required by the Catholic Headmasters Association to be included in the Supplementary Panel arrangements are not unfair and have the merits of objectivity rather than involving some kind of subjective investigation. Qualifying for membership of the Supplementary Panel does not involve any enquiry as to a person's private religious beliefs or as to whether they practise their religion. All that is required is that they prove satisfactory service for particular specified periods in Roman Catholic schools. I think that this is a much fairer system than a system under which religious beliefs and practices were enquired into. The latter would be open to considerable doubt, uncertainty and dishonesty. Under the Irish system of education the State does not necessarily own the schools it funds. In fact it owns only a small minority of schools. The schools run by the religious orders and clergy are privately owned schools but the Department of Education pays the teachers' salaries. There is an annual Appropriation Act passed by the Oireachtas which permits this funding. Educational policy at State level for this reason has for over a hundred years been for the most part implemented executively rather than by statute. The Minister merely lays down particular conditions attaching to his funding. There is therefore no infringement of Article 15.2 of the Constitution. Counsel for the Plaintiff, Mr Hogan, has made it clear that it is not part of his case that the entire system of executive management of the education system in Ireland is itself unconstitutional as not having a statutory foundation. He is merely arguing that a particular scheme which in his view is discriminatory would at the very least require to have a statutory basis. I cannot accept this proposition. I do not think that the Supplementary Panel arrangements are any different than any other part of the educational policy and conditions of funding. Of course Mr Hogan makes a further point to which I have not adverted to up to now. Under the Supplementary Panel system an exception is made in relation to clerical teachers to the extent that a particular clerical teacher may be replaced by another clerical teacher without having to comply with the panel arrangements. But again this is part and parcel of the overall concern of the Catholic Headmasters Association to maintain the religious identity of the school and the fact that a clerical teacher must replace another clerical teacher is itself a compromise arrangement.

Mr Hogan's next argument concerns Article 44.2(3) of the Constitution. That paragraph reads as follows:-

"The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status."

That paragraph cannot be read in isolation from Article 42 which effectively preserves the right of parents to have their children educated in denominational schools, a point to which I will be returning. Furthermore, as I have already demonstrated the Supplementary Panel system is not in fact based on religious, profession, belief or status. It is based on particular degrees of experience in Roman Catholic schools. Possibly an argument might be made that the rule that a clerical teacher can be replaced by a clerical teacher did infringe Article 44.2(3) but I do not think it does when one reads that paragraph of the Constitution in conjunction with other relevant articles particularly those relating to education. At any rate that rule in no way affects the Plaintiff.

The next suggestion is that the panel system is haphazard, arbitrary and unfair. Originally a case was made under the Competition Act as is clear from the Statement of Claim. All allegations of infringement of the Competition Act have been withdrawn. For the reasons which I have indicated in dealing with the other arguments it does not appear to me that the panel system is haphazard, arbitrary or unfair.

I now turn to the argument that the Minister has infringed on the Plaintiff's right to earn a livelihood without statutory authority. I have already dealt with the absence of statutory authority and I do not intend to go into it further. The Plaintiff's right to earn a livelihood is not infringed in my view. The panel systems apply to all teachers though the Supplementary Panel arrangements do not apply to all kinds of schools. Because a person has a right to a particular livelihood it does not mean that he has a right to receive employment from any particular employer. As I have already explained the Minister has no interest in preventing the Catholic employers from employing anybody they like. The conditions in the Supplementary Panel system are conditions laid down by those employers in consideration of their agreement to honour the system and in assertion of the right to maintain denominational schools. No Minister prevented the Plaintiff from achieving panel rights. He failed to get panel rights because of his own inability to get employment on a temporary basis in Catholic schools. As it turns out the Plaintiff's livelihood is in no way affected because he has achieved an excellent job with excellent prospects in the community school sector.

Mr Hogan argues that the Plaintiff has been adversely affected in that his pension entitlement is allegedly jeopardised and that his seniority as a teacher is affected. I am not satisfied that the Plaintiff's pension entitlement has in fact been adversely affected. Even if he had been eligible to join the Supplementary Panel it is not clear to me that he would necessarily have achieved a permanent teaching post of the kind which he has now at any earlier stage, given his history of failing to get temporary appointments in Catholic schools. I think I should also mention at this stage that the evidence established that only fifty per cent of the posts in Catholic schools tend to be filled from the panels. Other permanent posts are filled either by head-hunting or in many cases by open advertising. At all material times the Plaintiff was eligible to apply for a post in a Catholic school openly advertised.

The general thrust of this judgment is that the State could not adopt a funding scheme for secondary teachers which had the effect of destroying the denominational nature of schools requiring funding. I believe that this particular view is warranted by a reading of Article 42 of the Constitution as a whole. It is true that by its express terms the Constitution only requires funding of primary education and it was in relation to that aspect of constitutional obligation that Crowley v Ireland (1980) IR 102 was concerned. But if the State in fact decides to fund secondary education by paying the salaries of teachers it cannot impose conditions to that funding which would effectively destroy the denominational nature of schools requiring such funding. It is for that reason that it was reasonable that balancing conditions should be attached to the Supplementary Panel system.

I therefore take the view that the Plaintiff's claim is ill-founded and must be dismissed.