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Cite as: [2005] 1 IR 561, [2005] IEHC 122

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Neutral Citation No: [2005] IEHC 122

THE HIGH COURT

[2005 No. 1260P]

BETWEEN

MARY BECKER

PLAINTIFF

AND

THE BOARD OF MANAGEMENT ST. DOMINIC'S SECONDARY SCHOOL CABRA

DEFENDANT

JUDGMENT of Mr. Justice Clarke delivered 15^th April, 2005.

The plaintiff is a teacher at St. Dominic's Secondary School which is run by the defendant Board of Management ("the Board"). She teaches geography and information technology.

In these proceedings she seeks injunctive relief relating to her suspension from duties. However, as she points out in her grounding affidavit, there is a protracted background to the application. Much of that background is either not in itself relevant to this application or, where relevant is contentious, and not such as can be resolved on an interlocutory application such as this. However it is important to note that there are already in being three sets of proceedings arising out of the plaintiff's employment with the Board.

The first set of proceedings were instituted for the purposes of seeking to quash the imposition of a sanction on the Plaintiff by the Defendant as a result of a grievance procedure invoked against her pursuant to a "Dignity at Work Charter" by a member of the board of management and a teaching colleague. Judgment is awaited in that matter.

The second set of proceedings does not directly involve the Board but relates to a determination of an independent arbitrator who was asked to adjudicate upon the circumstances in which the plaintiff failed to be appointed to a post of responsibility. The plaintiff was dissatisfied with the determination of the arbitrator and has instituted proceedings seeking to have same quashed. The Board is not a party to those proceedings in that the interests of the employer in such proceedings are represented by a body representative of the boards of management of all catholic secondary schools. Judgment is also awaited in those proceedings.

In the third set of proceedings the plaintiff claims damages for negligence as against the board in circumstances where she contends that she suffered harassment, intimidation and the infliction of mental and emotional distress. Those proceedings remain at an early stage.

At least partly in the context of those personal injury proceedings an attempt was made on behalf of the Board to have the Plaintiff assessed by a psychiatrist nominated by the Board. It will be necessary later in the course of this judgment to deal with the extent to which that request was also one which should be viewed as a request arising in the context of the Plaintiff's contract of employment. However one way or another great difficulties were encountered in reaching agreement as to the terms and circumstances in which such a psychiatric assessment could take place and the identity of the person who might carry out such assessment on the part of the Board. It will also be necessary to address those difficulties later in the course of this judgment.

Eventually an agreed appointment for such an assessment was made for 22^nd March, 2005. On the morning of the previous day the Plaintiff's solicitors telephoned the Defendants solicitors to advise them of the plaintiff's inability to attend the appointment and also proffered a sick certificate from the Plaintiff's general practitioner.

In those circumstances the Defendants sent a letter to the Plaintiff which while dated the 24^th March was delivered on 31^st March and which required the Plaintiff to absent herself from school with immediate effect until the independent medical assessment had been received by the board. It is made clear that the suspension is on full pay and it is also indicated that the assessment can now take place on Tuesday April 26^th.

The letter makes it clear that the basis for the suspension is stated to be for the reasons as set out in paragraph 3 of that letter as follows:-

"The Board has already expressed its serious concern about your previous absences relating to "stress" the board is very concerned now about your pattern of further absences. You are aware of a complaint you have made recently against a member of staff and of complaints recently against you from certain colleagues. The Principal also recently gave you complaints against you from a parent, a student and one of your classes. All these complaints will obviously require to be investigated, but you will understand that all of the matters set out above, coupled with the fact that you have previously issued court proceedings against the school claiming (amongst other things) stress injury, are a major concern to the Board. The Board believes that, having regard to the school's duty of care to you and all concerned the school must get the benefit of urgent independent medical advice on your fitness for work at this time."

The letter also makes brief reference to the history of the attempts to arrange for such a medical inspection in the past.

It is therefore clear that the reason given by the Board for the suspension is that, in its view, it was necessary to obtain an urgent medical view on the plaintiff's fitness for work and that pending receipt of such a view and a short opportunity to consider same it was inappropriate that the Plaintiff should attend for duties.

In those circumstances the Plaintiff through her solicitors immediately wrote to the Board making complaint against her suspension. In the events that occurred she in fact attended for work on the following Monday morning (being the first day of the new term) but was, at an early stage, asked to leave. She immediately instituted proceedings and brought the interlocutory application now before the court which has, thankfully, come on for hearing in a very short period of time.

In substance the Plaintiff makes two substantive points in her argument in favour of her contention that her suspension is unlawful.

Firstly she contends that there is no proper legal basis for a suspension of the type which has occurred in this case.

Secondly there are very many accusations contained in her affidavits which amount to a suggestion that the actions of the Board are not bona fide and are contrived. In one case these accusations amount to an insinuation of an involvement in the wrongful actions of the Board on the part of the Defendants solicitors and certain psychiatrists who have been nominated from time to time to carry out assessments on the part of the Board and other schools. I should note that in the course of his submissions to the Court Counsel for the Board made it clear that the latter contentions (which were contained in a replying affidavit sworn by the Plaintiff immediately prior to the hearing and served on the morning thereof) were not replied to by a further affidavit on the part of the Board as to do so would have necessitated an adjournment of the applications. It was nonetheless noted that the accusations were strenuously denied. It should also be noted that certain of the documentation exhibited (including certain reports or letters from the plaintiff's own psychiatrist), make not dissimilar accusations.

It must be understood that at this stage of the proceedings and after a relatively short hearing based on affidavit alone it would be both impossible and inappropriate for the court to express any views on the merits or otherwise of such contentions. Insofar as they may become relevant to the ultimate disposal of these, or any other, proceedings they would necessarily have to be the subject of significant oral evidence and a detailed consideration.

Against that background it is necessary to assess the state of the case at this stage against the traditional criteria applied in the grant or refusal of an interlocutory injunction adapted, as per the established authorities, to cases involving contracts of employment.

I must therefore first turn to the question of whether it has been established that there is a fair issue to be tried. This involves considering whether there are arguable grounds for the Plaintiff's contention that a suspension does not lie in circumstances such as those present in the instant case and her contention that the actions of the Board are not bona fide. It is also necessary to consider whether the Board has made out an arguable case in favour of the suspension. I am satisfied that the plaintiff has established an arguable case. I am equally, however, satisfied that there is a fair issue to be tried as to the contention on the part of the Board to the effect that there is an implied entitlement on the part of an employer when faced with good reason to be concerned as to whether an employee is fit for work to prevent such employee from attending work for a reasonable period of time to enable an appropriate medical assessment to be carried out. Whether such an entitlement may, after full consideration at trial, be found to exist either generally or on the facts of this case is not a matter which can be determined finally at this stage. However I am satisfied that is an arguable proposition. It is not, however, arguable that such a proposition represents the law on an unqualified basis.

Firstly it must, be made clear that the exercise of any such power could only occur in circumstances where the employer was acting bona fide in the interests of the employee concerned, and/or also in its own interests so as to protect itself from any possible contention that it had failed properly to deal with the health and safety not only of the employee concerned but also other employees and, potentially, other persons with whom the employer was involved such as, in this case, pupils parents and the like. For the reasons indicated above it is not possible for the court to reach any conclusion at this stage as to the contention that the Board in this case is acting mala fides. However it is necessary to engage in a more detailed analysis of the sequence of events surrounding the request for and history of the psychiatric assessment to ascertain whether the Board has made out an arguable case to the effect that the suspension is justified on the facts of this case.

Secondly it must be clear that if such an entitlement on the part of an employer exists it can only arise in circumstances where the nature of the matter giving rise to concern is such as would justify keeping the employee concerned out of work and where, at least so far as the employer is concerned, the period for which the employee is to be kept out of work is itself kept to the minimum. To assess whether an arguable case has been made out in relation to both of those matters it is also necessary to engage in a more detailed analysis of the events surrounding the request for the psychiatric assessment.

That request was initiated by letter of 2^nd February, 2004 and was stated to arise from "a pattern of periodic sick leave on your part on the grounds of "work related stress"".

The letter went on to indicate that the Board had decided that "in order to be in a position to make informed decisions as regards the Board's duties to you as a teacher, and its duties to the school itself, the Board should arrange for a medical assessment of your stress and the causes of it, at the Board's expense. The Board may also require, with your permission, that your own doctor furnishes a doctor to doctor report to the Board's doctor".

An appointment was then suggested with Dr. Kennedy a psychiatrist nominated by the Board.

While not opposing that request in principle some debate between the parties respective solicitors occurred both in writing and, it would appear, in telephone calls which led to a second suggested appointment planned for 23^rd April, 2004. It should be noted that the letter indicating the timing of that second appointment also brought into the question the fact that the assessment was also being sought in the context of the personal injury proceedings initiated by the Plaintiff by indicating that a failure to attend would lead to an application to the court for an order striking out those proceedings. However the fact that the assessment was also been sought in the context of the Plaintiff's fitness for work was confirmed by letter of 8^th April, 2004 from the Defendants solicitors to the Plaintiff's solicitors.

Thereafter there was an acceptance on the part of the Plaintiff through her solicitors by letter dated 21^st April that she would attend for the psychiatric assessment planned to be conducted by Dr. Kennedy subject to certain terms as to the attendance of her own medical advisor and the venue. While a debate concerning such matters was continuing the Plaintiff's solicitors under cover of a letter of 20^th August, 2004 forwarded a letter from the Plaintiff's psychiatrist Dr. Michael Corry dated 1^st July which raised what were, in the view of Dr. Corry, serious issues as to the appropriateness of his patient, the Plaintiff, seeing Dr. Kennedy. In that letter Dr. Corry makes serious contentions in respect of Dr. Kennedy and indicates his unwillingness to recommend that the plaintiff see Dr. Kennedy. He also states that the Plaintiff "is an extremely fragile individual who frequently entertains suicidal thoughts".

It must be said that it is unfortunate that having agreed to see Dr. Kennedy the Plaintiff should then have taken a different view which was not communicated to the Defendants for some four months after the initial acceptance. It is impossible, at this stage of the proceedings, to come to any view as to the reasonableness or otherwise of the position adopted by Dr. Corry in the letter referred to above. However from the legitimate perspective of the Defendants the position is that some four months after agreeing to see Dr. Kennedy, which period appears to have been spent attempting to agree the parameters of the visit, the Plaintiff then appears to have adopted an entirely different position in accepting to the advice of Dr. Corry and declining to see Dr. Kennedy. As it will be relevant in relation to subsequent events I should finally note that in the course of his letter of 1^st July (which as has been pointed out was only forwarded to the Defendants solicitors on 20^th August), Dr. Corry makes the following unqualified statement "Ms. Becker is prepared to see any other psychiatrist that it is nominated by the board of management".

In the light of the statement contained in Dr. Corry's letter concerning the entertainment by the Plaintiff of suicidal thoughts the Board sought confirmation by letter of the 16^th September that the Plaintiff was receiving appropriate medical treatment and was fit for normal school duties. While it has been suggested in the course of these proceedings that that letter amounts to part of an overall campaign on the part of the Board to remove the Plaintiff from her position it seems to me that it is at least prima facie a reasonable position for the Board to adopt. As has been pointed out previously in the course of this judgment it would be wholly impossible for the Court to reach any view at this interlocutory stage as to the Plaintiff's overall contention that the actions of the Board amount to part of an opportunistic strategy to remove her from her position. It is obviously possible that a court of trial may be persuaded that that is in fact the case. There is an issue to be tried in that regard. However on the face of it the receipt by the Board of a letter in the terms set out in Dr. Corry's letter of 1^st July would legimtately cause any employer to have concerns which would need to be followed up.

Due to the absence of Dr. Corry an initial certificate of fitness for work was received from the Plaintiff's general practitioner which was dated 20^th September which in turn was followed up by further correspondence concerning the familiarity of the general practitioner concerned with Dr. Corry's position. Dr. Corry finally reported on the matter by letter of 21^st October to the Plaintiff's solicitors which was in turn forwarded to the Defendants solicitors. In that letter Dr. Corry confirmed that the Plaintiff was receiving appropriate medical treatment for her psychiatric condition and that she was fit for normal school duties. I should also note that in the course of that letter (and elsewhere) Dr. Corry expresses the view that the Plaintiff's condition is due to work place bullying and harassment. Whether that be so is again a matter which cannot be determined until there has been a full hearing involving such contentions. It would, therefore, be wholly wrong for this court to base any decision at this time on the assumption that those contentions were correct.

The Defendant renewed, by letter of 22^nd December, 2004 their requests for an independent psychiatric assessment and, under protest, nominated Dr. Damien Mohan to replace Dr. Kennedy. That letter set out the history of the attempts to arrange such an assessment and the difficulties in achieving same.

Initial objection was taken to Dr. Mohan based again on the views of Dr. Corry as communicated to the Plaintiff's solicitors in a letter of 6^th January which in turn was forwarded to the Defendants solicitors under cover of a letter of the 7^th January.

I should state that it is unfortunate that Dr. Corry, having indicated in his letter of 1^st July that the Plaintiff would see any psychiatrist nominated by the board other than Dr. Kennedy and who did so without in anyway qualifying that statement as to the category of psychiatrist which he considered appropriate to assess the Plaintiff then sought some six months later to introduce such a qualification. Again without being able to comment on the merit or otherwise of the concerns expressed by Dr. Corry, is unfortunate that for the second time in the course of seeking to make arrangements for the psychiatric assessment, the Plaintiff has given the appearance of seeking to move the goalposts.

The Plaintiff did, however, under protest, indicate that she would see Dr. Mohan and that fact was communicated by letter of 31^st January, 2005 to the Defendants solicitors. An appointment was made for the 22^nd March, 2005 and that fact was communicated to the Plaintiff's solicitors by letter of 7^th February, 2005. It would appear that due to a chest infection the Plaintiff was certified as being unable to attend work by her general practitioner from 18^th March to 22^nd March and on that basis cancelled the appointment.

In the light of the above history it seems to me that the stated basis of the Board for their concerns as to the suitability, at the present time, of the Plaintiff carrying out her duties are capable of justifying a decision to ask her to absent herself from those duties pending a suitable medical examination.

There is, however, it seems to me a fair issue to be tried as to whether the Board is acting legitimately either as a matter of law or on the facts of this case bona fide in so doing.

Clearly this is a matter where damages would not be an adequate remedy and I must now turn to the balance of convenience.

In the course of the hearing before me it was accepted by counsel on behalf of the Defendant that that the entitlement to suspend pending medical examination which he contended for in the circumstances of this case would necessarily be subject to a similar restriction on time as has been identified by the Courts in respect of a suspension pending an investigation into wrongdoing. See the judgment of Macken J. in Martin v. Nationwide Building Society [1999] ELR 241 where, on the facts of that case, a delay in completing an investigation during which the plaintiff was suspended was found to be "inordinate and unjust". In those circumstances it is accepted by the defendant that the current entitlement of the Board to suspend would, on any view, only last for a reasonable period after the proposed appointment of the Plaintiff for assessment now fixed for 26^th April next. In that context it was indicated that it should be possible to receive a report from Dr. Mohan within seven days of that appointment and furthermore that the Board should be able to meet to consider such a report and reach any conclusions which appeared appropriate as a result thereof within a further period of seven days. On that basis it is accepted that there should be a final decision by the Board not later than Tuesday 10^th May, 2005.

Therefore the one thing that is clear is that a suspension on the current basis can only last for a further period of some three and a half weeks. If, thereafter, the Board considers it appropriate to require that the Plaintiff no longer attend for work then that decision will be based upon the Board's consideration of the medical evidence presented to it. Whether there would or could be a challenge to the view which the Board might take on that occasion would be a separate matter.

In all the circumstances I am satisfied that the balance of convenience favours the Board being entitled to continue to require the Plaintiff to absent herself from work for such a brief period of time. In coming to that view I have taken into account the fact that for one reason or another (and there is again contention as to much of the reasons why) the Plaintiff has in fact been absent from work for a period of 160 days approximately over the last short number of years. In those circumstances I do not believe that an absence of the type that would be imposed by not granting the injunctive relief which she seeks up and until the 10^th May would amount to an excessive burden.

As I pointed out in Evans v. IRFB Services (Ireland) Limited (Unreported judgment, Clarke J. 11^th April, 2005)

"It does not seem to me that the plaintiff is entitled to any order at an interlocutory stage which would amount to an indirect order of specific performance in respect of his contract of employment. The height of his entitlement, subject to the question of the balance of convenience, must necessarily be for an order in terms similar to that granted in Garrahy which would preclude or limit the making of an appointment to the job of head of the rugby department pending the trial of the action."

That passage followed an analysis of the judgment of Kelly J. in Reynolds v. Molocco [1999] 2 IR 203 and of O'Higgins J. in Garrahy v. Bord na gCon [2003] ELR 274.

While there may be exceptions to that general proposition such as a case where the defendant employer had failed to make out any arguable basis for a suspension, or has been guilty of an inordinate and unjust delay in concluding an investigation as in Martin, the above proposition is nonetheless applicable to the facts of this case and I would see no reason to depart from the view which I took in Evans in this case.

In all the circumstances I therefore the refuse the interlocutory relief sought. However I would wish to express my clear view that in the absence of some unexpected and compelling feature the current suspension (that is to say suspension on the current basis) could not legitimately extend beyond 10^th May. In the absence of such an unexpected change of circumstances I would be prepared to grant the Plaintiff an injunction should the suspension, on the current basis, continue beyond that date.

Approved: Clarke J.

15/4/05