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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Moore v Western Education & Library Bo... [2013] NIFET 00113_11FET (22 February 2013)
URL: http://www.bailii.org/nie/cases/NIFET/2013/113_11FET.html
Cite as: [2013] NIFET 113_11FET, [2013] NIFET 00113_11FET
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FAIR EMPLOYMENT TRIBUNAL
CASE REF: 113/11 FET
CLAIMANT: Anne Moore
RESPONDENTS: Western Education & Library Board and individual
Members of the Board of Governors of Castlederg High
School
NOTICE PARTIES: 1. Department for Employment & Learning
2. Office of the First Minister and Deputy First Minister
DECISION ON A PRE-HEARING REVIEW
The unanimous decision of the Tribunal is that the Tribunal has jurisdiction to hear the claimant’s claim of unlawful discrimination in relation to the appointment of the principal at Castlederg High School in or around 20 June 2011. The claim will be listed for a substantive hearing.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mr P McKenna
Mr P Killen
Appearances:
The claimant was represented by Mr P Coll, Barrister-at-Law, instructed by Murphys, Solicitors.
The respondents were represented by Mr A Colmer, Barrister-at-Law, instructed by Education & Library Board Solicitors.
The notice parties were presented by Mr P McAteer, Barrister-at-Law, instructed by Crown Solicitor’s Office.
Background facts
1. The claimant has worked at Castlederg High School for approximately 34 years and is a Roman Catholic.
2. Castlederg High School is a non-denominational controlled school. The claimant is an employee of the first-named respondent.
3. The claimant became Vice-Principal in or around 2000. An additional Vice-Principal was appointed in or around 2005.
4. The claimant was Acting Principal during the substantive Principal’s illness from 24 August 2010 for approximately 61/2 months.
5. On the retirement of the substantive Principal in or around June 2011 the post of Principal was advertised openly. No religious restrictions were placed on that post in the job advertisement or in the job specification and no religious restrictions on that post were conveyed to the claimant or to any other applicant.
6. The claimant was interviewed for the post of Principal and was not appointed. The other Vice-Principal was interviewed and was appointed. The other Vice-Principal who was appointed to the post of Principal is of a different religion to the claimant.
7. The claimant does not recall any occasion in her 34 years’ teaching experience in Castlederg High School where the person acting as Principal of that school carried out any teaching duties. The respondents do not point to any occasion on which the Principal and Castlederg High School did undertake any teaching duties. They stated in response to a Notice for Additional Information that:-
“The persons in post as Principal of Castlederg High School since the 1st of January 2007 have not been (and are not currently) timetabled to carry out particular teaching duties at the school.”
8. The respondents’ representative did not seek to make the case before the Tribunal that the current or recent Principals of Castlederg High School have carried out teaching duties. There is therefore no dispute between the parties on this point. The parties also accept that the Principal could, in theory, and in accordance with standard conditions which were applicable to all schools, ranging from two teacher rural primary schools to large secondary schools, have undertaken teaching duties.
Preliminary issues
9. The preliminary issues before the Tribunal have been reformulated in the following way:-
(i) Whether the Fair Employment Tribunal has jurisdiction to consider the claimant’s claim of religious discrimination in connection with her non-selection for the post of School Principal of Castlederg High School, or whether jurisdiction is excluded by operation of Article 71(1)(b) of the Fair Employment and Treatment (Northern Ireland) Order 1998, in that ‘teacher’ can and should lawfully be construed to mean for instant purposes ‘Principal’.
(ii) If ‘teacher’ can and should lawfully be construed to include a ‘Principal’ whether the exemption from protection against religious belief/political opinion discrimination created by Article 71(1)(b) of the 1998 Order and Article 15(2) of the EU Framework Directive on Equal Treatment in Employment and Occupation 2000/78 is contrary to Articles 6, 8, 9 and 14 of the European Convention on Human Rights.”
10. Therefore, the matters before this pre-hearing review resolve into two issues, namely:-
(i) should the competition for the post of Principal of Castlederg High School be interpreted as the ‘recruitment of a person as a teacher in a school’ for the purposes of the 1998 Order; (‘the statutory construction issue’); and, secondly
(ii) if it should, does the consequent exemption from the jurisdiction of the Tribunal and the application of the 1998 Order amount to a breach of Articles 6, 8 and 9 and 14 of the European Convention on Human Rights? (the ECHR issue’)
The hearing
11. The Notice Parties submitted two witness statements in accordance with the case management directions. The witnesses were La’Verne Montgomery of the Department of Education and Mr Frank Duffy of Office of the First Minister and Deputy First Minister. Since there was to be no cross-examination of either witness, these statements were simply entered into evidence by agreement of all the parties. They were not sworn or affirmed to by either Mrs Montgomery or Mr Duffy.
12. The hearing of the pre-hearing review took place over two days, namely 6 February 2013 and 12 February 2013. The Tribunal met to consider the matter further on the afternoon of 12 February 2013 and on 14 February 2013 and to reach a decision. This document represents the decision.
13. The Tribunal heard representations from the claimant’s representative, from the respondents’ representative and from the Notice Parties’ representative. Each had provided written skeleton arguments in advance.
14. This claim raised an important issue about the jurisdiction of the Fair Employment Tribunal and the application of the 1998 Order. The circumstances of the case were that, should a substantive hearing be fixed, it would involve a relatively lengthy hearing which would consider the evidence of several witnesses. That evidence would be tested by cross-examination and re-examination in a public forum. It would inevitably raise substantial issues of costs and of personal distress. These matters were particularly concerning where there was a clear preliminary argument about jurisdiction. It would have been both costly and futile for the parties to have prepared for and to have engaged in a substantive hearing if the Tribunal hearing the claim may not have had jurisdiction in the first place.
15. The Vice President considered this point at a Case Management Discussion and determined, with the consent of the parties, that the risk of acting without jurisdiction, and therefore of causing unnecessary costs and distress to the parties, and to individuals, was such that it outweighed the disadvantages caused by a potential further delay in the process consequent on any appeal on the question of jurisdiction.
16. The decision to hold a separate pre-hearing review involved a difficult balancing exercise but a statutory Tribunal must be careful where it has not yet been determined that it has jurisdiction. It must consider the overriding objective and the need to achieve justice. While minimising costs and delay, it has to reach a balanced conclusion. The Vice President, in the Case Management Discussion process, considered the case law which has been set out in the FET decision in Sefton v Queens Counsel Appointments Northern Ireland Ltd and Others [112/11 FET] (employmenttribunalsni – decisions). It is clear that pre-hearing reviews (preliminary hearings) have to be approached with caution. They carry a significant risk of delay and can confuse matters. They should be the exception. Above all, there needs to be a clearly severable issue that can and needs to be tried separately. This is a clear situation, as in Sefton, where jurisdiction was robustly challenged. Until arguments were heard and determined, jurisdiction was in doubt. In Dandpat (see Sefton), Mr Justice Underhill stated:-
“Mr Laddie reminded me of the many observations in case law – most recently, as it happens, in SCA Packaging, to which I have already referred – to the effect that preliminary points of law in the Employment Tribunal are often shortcuts that lead to long delays and should only be used sparingly. Those observations are well known and need always to be born in mind, but the authorities do not say that preliminary points of law, and certainly points going to jurisdiction [Tribunal’s emphasis] should never be permitted. What is right in any given case depends on an assessment of different considerations in the interests of efficient case management; and this Tribunal (EAT) is always very reluctant to intervene in case-management decisions of this character taken by an Employment Judge.”
In the present case the preliminary issue was one of jurisdiction which could be determined separately after considering legal submissions and undisputed background evidence.
In the event, the decision in this case was to proceed by way of a pre-hearing review to determine the question of jurisdiction. That pre-hearing review was unfortunately delayed due to various matters. However, any substantive hearing would have been similarly delayed.
17. The parties have been advised in the course of the case management process to prepare, if not to exchange, witness statements for a substantive hearing while memories of the appointment process are relatively fresh and therefore to minimise any adverse effect of a delay in determining the question of jurisdiction at first instance and on appeal.
18. Under Rule 43 of the Fair Employment Tribunal Rules in Schedule 1 to the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, Notices were issued to the Attorney General’s Office and to the Notice Parties. The Attorney General determined that the claim did not raise a devolution issue for the purposes of the 1998 Act and did not enter a submission.
Relevant law
First Issue
Statutory Construction
19. Article 15(2) of the EU Framework Directive on Equal Treatment 2000/78/EC provides that the provisions of the Directive on religion or belief:-
“Shall not apply to the recruitment of teachers in schools in Northern Ireland insofar as this is expressly authorised by national legislation.”
20. Articles 71(1)(b) and 71(1A) provide:-
“71(1) Subject to Paragraph (2) –
(a) Part VII does not apply to or in relation to employment as a teacher in a school; and
(b) the other provisions of this Order do not apply to or in relation to the recruitment of a person as a teacher in a school.
71(1A) For the purposes of Paragraph (1)(b) ‘recruitment’ means any step in the process of engagement of a person for employment up to the commencement of their employment.”
21. Bennion on Statutory Interpretation (5th Edition) states that:-
“The sole object in statutory interpretation is to arrive at the legislative intention.”
Bennion describes legislative intention as the ‘paramount criterion’.
22. In Heydon’s case [1584] 3 CO REP 7 the judgment states that the office of all judges is ‘to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico’.
23. In Eastman Photographic Materials Co Ltd v Comptroller of Patents, Designs and Trademarks [1898] AC 571, Lord Halsbury approved an extract from an earlier decision which stated:-
“We have therefore to consider not merely the words of this Act of Parliament, but the intent of the legislature, to be collected from the cause and necessity of the Act being made, from a comparison of its several parts, and from foreign (meaning extraneous) circumstances so far as they can justly be considered to throw light on the subject.”
24. The word ‘teacher’ can mean, in common usage, a frontline or classroom teacher recruited to work as such. It may also be extended to cover all those who have of necessity the status of a qualified teacher and who have in the past worked as a classroom teacher and therefore may, dependent on the appropriate context, include a school principal, a former teacher, such as a retired teacher, an educational administrator seconded from the ranks of classroom teachers, a school inspector or an examination adjudicator.
The terms of Article 71 of the Order do not include any specific interpretation provision. The Article does not seek to directly qualify or to explain the word ‘teacher’ or to specifically attract a definition or usage which appears in other primary or subordinate legislation. It would, of course, have been open to the legislative draftsman to have chosen to do so. It is notable that in relation to the other exemption in the 1998 Order, which related to 50/50 recruitment for police officers, the definition was specifically extended to include support workers.
25. The Tribunal therefore has to interpret the word ‘teacher’ purposively or teleologically in circumstances where there are more than one possible and competing interpretations of that word and where it is not statutorily defined. The Tribunal must seek to interpret the Order in a way that is consistent with the purpose of the 1998 Order, ie to provide a remedy for the ‘mischief’ of discrimination on the grounds of religious belief and/or political opinion.
26. The House of Lords in R (Quintavalle) v Secretary of State for Health [2003] 2 WLR 692 HL touched on this area. Lord Bingham of Cornhill stated:-
“Such is the skill of parliamentary draftsmen that most statutory enactments are expressed in language which is clear and unambiguous and gives rise to no serious controversy. But these are not the provisions which reach the courts, or at any rate the appellate courts. Where parties expend substantial resources arguing about the effect of a statutory provision it is usually because the provision is, or is said to be, capable of bearing two or more different meanings, or to be of doubtful application to the particular case which has now arisen, perhaps because the statutory language is said to be inapt to apply to it, sometimes because the situation which has arisen is one which the draftsman could not have foreseen and for which he has accordingly made no express provision.
The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute, other than a pure consolidation statute, is, after all, enacted to make some change, or address some problem or remove some blemish, or effect some improvement in national life. The court’s task, within the permissible bounds of interpretation is to give effect to Parliament’s purpose. So that controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”
27. In statutory interpretation, there is a general presumption that Parliament has no intention to encroach on fundamental principles of law. The right to protection against discrimination on the ground of religious belief and/or political opinion, and the right that protection should be enforced in a specialist Tribunal designated by Parliament, must be considered to be such a fundamental principle of law. If it is to be interfered with, clear and unambiguous statutory provision is required.
28. The House of Lords in R (Edison) v Central Valuation Officer [2003] 4 ALL ER 209 stated:-
“ … as an aid to construction of statutes, presumptions are from time to time invoked. This is particularly so where the rights of citizens regarded as of fundamental importance appear to be encroached upon by a particular application of a statute. In such a case it is presumed that Parliament, if it intended the statute to encroach upon the important fundamental right, would have expressly said so. If Parliament has not expressly said so, and if the statute is capable of being given sensible effect without encroaching on that fundamental right, a construction of the statutory language may be adopted that would leave unimpeded the right in question.”
29. The House of Lords in R v Secretary of State for the Home Department [2002] 2 AC 115 said:-
“Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”
30. The House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 stated:-
“It is a well-established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly – meaning, I think, that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.”
31. In Holmes v Bradfield UDC [1949] 2 KB, the High Court stated:-
“The mere fact that the result of a statute may be unjust or absurd does not entitle this court to refuse to give it effect, but if there are two different interpretations of the words in an Act, the court will adopt that which is just, reasonable and sensible rather than that which is none of these things.”
Relevant law (continued)
Second Issue
Does the statutory exemption in Article 71 contravene the Human Rights Act 1998 and the European Convention of Human Rights?
32. The Human Rights Act 1998 (‘the 1998 Act’) provides in Section 2 that:-
“(1) A Court or Tribunal determining a question which has arisen in connection with a Convention right must take into account any –
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
(b) opinion of the Commission given in a report adopted under Article 31 of the Convention,
(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the Court or Tribunal, it is relevant to the proceedings in which that question has arisen.”
33. The 1998 Act provides at Section 3 that:-
“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This Section –
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not effect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.”
34. The 1998 Act provides at Section 6 that:-
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Sub-section (1) does not apply to an act if –
(a) as a result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this Section ‘Public Authority’ includes:-
(a) a Court or Tribunal, … .”
35. The Convention rights replicated in Schedule 1 to the 1998 Act include the following:-
“Article 6
Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial Tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interest of juveniles or the protection of the private life of the parties so require, or to the extent that is strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice.”
Article 9
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject to only such limitations as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Article 14
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
36. In the course of the two days of intense legal argument which was itself based on detailed written arguments, the Tribunal was referred to a range of authorities. There are far too many to list or to summarise here without running the danger of converting this decision into a textbook on statutory interpretation and on the effect of European law. If this case proceeds further on appeal, and we suspect that it will, the Court of Appeal will be able to glean detailed assistance from the written submissions that we have received from the claimant, the respondents and the notice parties. These are attached to the current decision.
However, two decisions have emerged time and again in argument. Those were the decision of the Northern Ireland Court of Appeal in Flynn and Debast v The Southern Education & Library Board & Others[2007] NICA 56 and the decision of the Northern Ireland Court of Appeal in the case of In Re: Mark William John Parsons [2003] NICA 20.
37. The Flynn and Debast case concerned an appeal from a Fair Employment Tribunal which had held that it did not have jurisdiction to entertain complaints of unlawful discrimination brought by two individuals in relation to an application to be appointed as Head of Modern Languages at Laurelhill Community College in Lisburn. The issue was precisely whether the Tribunal had jurisdiction to consider those claims as a result of the exemption in Article 71(1)(b) and (1A) of the 1998 Order.
The Tribunal can however draw very little assistance from this decision in relation to the current problem. The Flynn and Debast case, firstly, concerned applications from individuals who were clearly classroom teachers seeking a further appointment as such. Secondly, much of the argument before the Court of Appeal concerned whether or not this was an appointment to a post or a promotion for the purposes of the exemption. Thirdly, there would not appear to have been any argument in relation to the Human Rights Act 1998 or to ECHR law generally. Any European law argument related to the Framework Directive. The Court was not apparently invited to consider a declaration of incompatibility. In any event, the Court determined that the Tribunal did not have jurisdiction in the case of two classroom teachers seeking an appointment as a teacher and who fell within the strict terms of the exemption.
38. In the Parsons decision, the Court was asked to consider the legality or otherwise of the 50/50 recruitment rule in relation to PSNI recruitment. Again the Tribunal can draw only limited assistance from this decision in relation to the current problem. It referred to a different exemption, ie the exemption in relation to 50/50 recruitment, a different potential justification and a different issue of statutory interpretation. Furthermore, no separate argument in relation to Article 14 appears to have been brought before the Court.
In relation to the ECHR, Carswell LCJ determined at Paragraph [23] that:-
“There is a breach of Article 9(1) only where a certain level disadvantage is reached (cf Rix LJ’s judgment in Williamson’s case at Paragraph 193). That may occur when belonging to his religion is made so difficult for a complainant that in consequence of the acts complained of he is in effect being coerced to change his religion, eg if adherence of a certain religion were barred from all or substantial areas of work (as in Thlimmenos v Greece). This would comprehend the second and fourth of the suggestions advanced by Ms Tahzib which we have cited, but restrictions on the line of the first and third would constitute a breach of Article 9(1) only if the invasion of freedom were sufficiently substantial.”
The Court went on to say at Paragraph [24]:-
“On the facts of this case it may be contended that the disadvantages imposed on the appellant in seeking appointment as a police trainee because he was not a Catholic tended to make him consider abandoning his religion. He was, however, free to seek and engage in other employment and no case has been made that his failure to obtain appointment as a trainee police officer had a very substantial effect on his career or employability. We therefore consider that those disadvantages were not such as to involve a breach of his Article 9 rights. It follows that Section 46(1) of the Act [Police Act – Tribunal’s note] is not in our opinion incompatible with the appellant’s rights under Article 9(1) of the Convention and we must dismiss the appeal.”
39. One of the issues which we have to determine is whether or not, in circumstances where an individual had taught for 34 years in a large school in the west of the province, had progressed through the natural career progression pattern, through Head of Department, to Vice Principal, to Acting Principal and who was then, on her claim, refused appointment as substantive Principal on the basis of her religion, the claimant was a person who had suffered a ‘very substantial effect on her career’. These matters are fact-sensitive. While it may be possible to regard an individual who at a relatively young age and at an early career stage, was turned down for a particular post as not having suffered a severe or substantial effect on his or her career, the situation may or may not be different in the case of somebody who at the tail end of her career was denied ultimate career advancement in the manner alleged by the claimant.
40. The Tribunal notes the decision of the ECHR in the case of Eweida and Others v The United Kingdom [2013] ECHR 37 which was issued 15 January 2013. Although it was not referred to in any argument by any of the three counsel before us, it was widely reported and we can therefore assume that it was known to all the lawyers involved in this case. It was not directly on point in that it did not concern allegations of direct discrimination on the grounds of religious belief in connection with recruitment. However it seems useful in that it does refer to and does summarise the existing jurisprudence in relation to alleged breaches of Article 9, either alone or with Article 14, in both the UK and in the ECHR.
41. The Eweida decision concerned four separate individuals who had separately brought claims alleging breaches of Article 9 and/or Article 14. They included Mr McFarlane whose UK decision is quoted elsewhere in the present decision. The individuals were a Coptic Christian who worked for British Airways and wished to wear a cross, a Christian who worked for a health trust and again wished to wear a cross, a registrar who was a Christian and wished to avoid performing civil partnerships and a worker for Relate who was a Christian and who wanted to avoid advising in relation to homosexual relationships. Therefore there was nothing which was directly on point in the current case, which is no doubt the reason why it was not referred to in argument, but it is nevertheless a useful and recent summary of relevant law in relation to Article 9.
42. The ECHR at Paragraph 79 put Article 9 of the Convention in its proper context:-
“The Court recalls that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. In its religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism in dissociable from a democratic society, which has been dearly won over the centuries, depends on it.”
43. At Paragraph 82, the Court noted the existing jurisprudence to the effect that not every act which is in some way inspired, motivated or influenced by religious belief constitutes a ‘manifestation’ of the belief. It stated:-
“In order to count as a ‘manifestation’ within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question.”
44. After reviewing the conflicting jurisprudence it stated at the end of Paragraph 83:-
“Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding the possibility of changing of job would negate any interference with a right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.”
45. In relation to Article 14, the ECHR noted at Paragraph 85:-
“The Court recalls that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols.”
46. The ECHR at Paragraph 86 stated:-
“The Court has established in its case law that the only differences in treatment based on an identifiable characteristic or ‘status’ are capable of amounting to discrimination within the meaning of Article 14 … . ‘Religion’ is specifically mentioned on the text of Article 14 as a prohibited ground of discrimination.”
47. In Paragraph 87 of the decision, the ECHR stated:-
“Generally, in order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous, or relatively similar, situations … . However this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different.”
48. In Paragraph 88 the ECHR continued:-
“Such a difference of treatment of treatment between persons in relevantly similar positions – or a failure to treat differently persons in relatively different situations – is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aims sought to be realised.”
Legislative history
49. The law relating to religious and political discrimination in Northern Ireland was originally set out in the Fair Employment (Northern Ireland) Act 1976. That Act provided originally for direct discrimination and the Fair Employment (Northern Ireland) Act 1989 extended the position to include indirect as well as direct discrimination.
50. Section 37(1) of the 1976 Act provided:-
“(1) Parts II to IV shall not apply to or in relation to –
(c) employment as a teacher in a school.”
51. The Fair Employment (Northern Ireland) Act 1989 in its original form confirmed that position and made general relevant amendments to the legislative provision including the creation of the Fair Employment Commission.
52. Controlled schools, including some which had, some several decades ago, been transferred to the state sector by the main Protestant churches, were classed as non-denominational, ie secular schools. That classification may or may not have represented reality. A Department of Education briefing note in 2000 explained that while in theory state or ‘controlled’ schools were non- denominational, in practice, they catered almost entirely for Protestant community. Roman Catholic maintained schools catered almost entirely for the Roman Catholic community.
53. The original rationale for the exemption in the 1976 Order was:-
(i) That without such an exemption, Protestant teachers would be disadvantaged and placed in a less favourable position. They would not, unlike their Roman Catholic colleagues, be able to apply for teaching posts in Roman Catholic maintained schools because of a genuine occupational reason. They would not, because of the non-possession of a certificate in Roman Catholic education, or otherwise, be able to participate in a Roman Catholic ethos and, in particular, would not be able to participate in the preparation of children for sacraments in that faith.
(ii) The Roman Catholic church objected to anything which might be seen as a dilution of the Roman Catholic ethos in maintained schools.
Latterly, the introduction of integrated education and that sector’s need to ensure a balance of teachers and pupils was prayed in aid by the Department as an additional basis for the continuation of that exemption.
54. The Fair Employment and Treatment (Northern Ireland) Order 1998 repealed and re-enacted the 1976 Order. It repeated the exemption in its original terms. It said at Article 71:-
“(1) Subject to Paragraph (2) this Order does not apply to or in relation to employment as a teacher in a school.
(2) The Commission shall keep under review the exception contained within Paragraph (1) with a view to considering whether, in the opinion of the Commission, it is appropriate that any step shall be taken to further equality of opportunity in the employment of teachers in schools.”
The 1998 Order continued at Article 70(3) to provide for a genuine occupational qualification. It stated:-
“(3) So far as they relate to discrimination on the ground of religious belief, Parts III and V do not apply to or in relation to any employment or occupation where the essential nature of the job requires it to be done by a person holding, or not holding, a particular religious belief.
(4) So far as they relate to discrimination on the ground of political opinion, Parts III and IV do not apply to or in relation to an employment or occupation where the essential nature of the job requires it to be done by a person holding or not holding a particular political opinion.”
The 1998 Order excluded teachers from reliance on that genuine occupational requirement, presumably since they were excluded in any event from the application of the Order. It stated at Article 70:-
“(5) Paragraphs (2) to (4) do not apply to employment mentioned in Article 71(1).”
However, the necessary corollary of Article 70 was that if the exemption in Article 71(1) did not properly apply, the genuine occupational requirement defence remained.
55. A report was commissioned in December 2001 by the Equality Commission from Professors Seamus Dunn and Tony Gallagher. It considered the continuation of the exemption of the employment of teachers from the application of the 1998 Order. That report concluded that the exemption was widely accepted and that there was no real appetite for change. That report is of no value to this Tribunal in determining the first or second issues. A perceived acceptance or the perceived popularity of a particular measure does not equate with the legality of that particular measure and it can be of no assistance in determining a question of statutory construction or in determining a question relating to the application of the Convention save to the limited extent of its relevance to justification. It is of note that the perceived popularity of the exemption did not preserve it from further dilution and amendment following the introduction of the EU Framework Directive 2000/78/EC.
56. In the run-up to the enactment of that Council Directive 2000/78/EC on 27 November 2000, a process of negotiation took place between the United Kingdom, Northern Ireland and European officials in relation to the continuation of the exemption and how that would impact on the new Directive.
57. On 25 May 2000, officials in OFMDFM concluded that:-
“This proposed EC Directive under Article 13 of the Amsterdam Treaty has implications for the exemption which FETO provides for school teachers at primary and secondary level in Northern Ireland. DFEE, who are in the lead on this, are seeking a line to take. Our view is that the exemption should be retained for the present and I attach a draft submission to the Secretary of State seeking approval for this approach.”
58. The submission contained the following:-
“Article 71 of the Fair Employment and Treatment (Northern Ireland) Order 1998 allows for teachers to be exempt from the legislation. This exemption, which was carried forward from the 1976 Fair Employment Act, is historically due to the segregated nature of education in Northern Ireland. The vast majority of Roman Catholic children receive their education in maintained schools in the general atmosphere and ethos of the Roman Catholic church and the vast majority of Protestant children are educated in controlled schools. This has created two separate areas of employment opportunity – Catholic teachers primarily looking to the maintained schools for employment and Protestant teachers looking to controlled schools. The emerging integrated school sector, as part of their ethos, aims for a mix of teachers.
When the 1976 Fair Employment legislation was drafted it was accepted that the churches, in particular the Roman Catholic Church and the parents of school children believed that children should be educated in a school that paid full regard to the child’s religion. Any legislation, which could alter this balance, might be perceived as an indirect attempt to move towards a system of integrated education. Consequently teachers were excepted from the scope of the legislation but this exception was to be reviewable by the Fair Employment Agency.
In 1986/87, the Fair Employment Agency reviewed this exception and concluded that it would not be appropriate to recommend any change to the current position. Since then there have been no further public reviews. The Equality Commission is empowered by the current legislation to keep the exception under review.
The Standing Advisory Committee on Human Rights (‘SACHR’), which has looked at this area in the past, made no recommendation about it in its 1997 Review – ‘Employment Equality : Building for the Future’.
DFEE has sought our line in relation to this exception. We have discussed the matter with our colleagues in the Department of Education and Northern Ireland Office and they are content that it should remain.”
59. It is clear, however, that those in Government were aware that the existing draft Directive would not permit the exemption (or ‘exception’) to remain. For example, in an minute of 19 September 2000 from OFMDFM to the Department for Education & Employment in Great Britain, it is recorded:-
“Our legal advice (as yours) is that this exemption would not be permitted under the existing draft Directive. Nor would the proposed exemption for religious schools be sufficient to cover the Northern Ireland situation as FETO simply is disapplied completely to ‘employment as a teacher in a school’.”
60. In a minute dated 21 September 2000 from the Department of Education to OFMDFM, a senior Department of Education official commented on a line to take in these matters. In relation to the status or real status of controlled schools he stated:-
“There are two issues here: status and perception. While controlled schools may be attended mainly by Protestant pupils they are owned by the State, not by any of the Protestant Churches, and to classify them as religious schools would be at odds with –
(i) the principle underlining their establishment,
(ii) their legal status in Northern Ireland, and
(iii) the law governing the provision of religious education in them.
There is a legal requirement that the religious education provided in controlled schools should be ‘non-denominational religious education, that is to say education based upon the Holy Scriptures – but excluding education as to any tenet distinctive of any particular religious denomination’. Collective worship must also not be distinctive of any particular religious denomination (the Education & Libraries (Northern Ireland) Order 1996).”
In relation to the exemption and its effect on integrated schools, he stated:-
“If the school is to be a genuinely integrated one, it follows, therefore, that the teaching staff should as far as possible reflect the denominational mix of the children. In the case of controlled integrated schools particularly it is likely that, on acquiring its status, most of the teachers would be drawn from the Protestant community, and schools may therefore need to have the flexibility to be able to attract or appoint catholic teachers to ensure that this balance is achieved.”
In relation to the Roman Catholic church he stated:-
“Insofar as the Directive, if not successfully qualified in respect of Northern Ireland, would presumably render this exemption in Northern Ireland law untenable, then the Roman Catholic church would object to measures that would require the exemption to be removed.”
61. On 29 September 2000, an official from OFMDFM wrote to Ministers inviting them to agree that the existing exemptions should be maintained and that the Directive should be amended accordingly. It contained a draft letter to the relevant GB Minister, David Blunkett MP. It stated:-
“The Fair Employment and Treatment (Northern Ireland) Order 1998 (‘FETO’) which outlaws discrimination on grounds of religious belief or political opinion does not apply in relation to the employment of teachers in schools in Northern Ireland. This exemption which was carried forward from the Fair Employment (Northern Ireland) Act 1976, results from the historically segregated nature of education in Northern Ireland. The vast majority of Roman Catholic children receive their education in maintained schools in the general atmosphere and ethos of the Roman Catholic church and the vast majority of Protestant children are educated in controlled (or state) schools. This has created two separate areas of employment opportunity – Catholic teachers primarily looking to the maintained schools for employment and Protestant teachers looking to controlled schools.
This exemption is open to review by the Equality Commission for Northern Ireland and at an earlier review in 1986/87 concluded that it would not be appropriate to recommend any change to that position. The Equality Commission is currently considering how it would take forward its duty to review the school teacher exemption.
We are of the view that the employment of teachers in schools should be exempt from the Directive as it relates to religion and belief. The reasons for this are:-
- the existing exemption under the Fair Employment and Treatment (Northern Ireland) Order 1998 derives from the largely denominationally segregated education system in Northern Ireland and a recognition that the majority of parents wish their children to be taught in schools where full regard is given to their religious denomination;
- there is no evidence of any general public dissatisfaction with the current provisions but the Equality Commission in Northern Ireland has powers to review this exemption and any debate on its retention or removal should be conducted locally;
- the exemption does not impinge upon the interests of parents who prefer an inter-denominational ethos, as they have had the opportunity since the 1999 Education Reform Order to have their children educated in segregated schools.
The removal of the exemption by the EC Directive would be seen as ignoring the issues and sensitivities of the local community in relation to the education of their children and the complexion of their schools. Objections may be raised by religious and community leaders which would draw schools into an area of controversy on denominational issues at a time when the education service is working to bring children together. The proposed exemption from religious schools, which has been proposed under the Directive, would not be sufficient to cover the existing exemption in Fair Employment and Treatment legislation. It would lead to a differentiation in the treatment of Roman Catholic and Protestant as teachers as Catholic schools would be exempt from the effects of the Directive but the Controlled and Integrated schools would not. This would rouse considerable political controversy in Northern Ireland, both about education and EU law.”
62. That letter was formalised and issued to Mr Blunkett MP.
63. It is apparent that negotiations between OFMDFM officials and Brussels did not go entirely according to plan. A note of 4 October 2000 between an OFMDFM official and the First Minister and Deputy First Minister indicated that:-
“The Commission appeared to accept the principle of an exemption for the provisions of religious discrimination for teachers in Northern Ireland schools.”
The Tribunal notes at this point that there is no record of the Commission having accepted that principle in relation to discrimination on the ground of political opinion; however that was not their primary focus.
The note goes on to state that:-
“However the Commission were adamant that exemption should relate only to the recruitment of teachers, rather than their terms of employment, harassment, promotion, etc. This would be slightly narrower than the exemption in the Fair Employment legislation but it is difficult to argue in favour of denying the protection of anti-discrimination law to teachers already employed in schools.”
64. As a further aside to describing the historical progress of this measure, the fact that it was noted within Government that it was difficult to deny the protection of anti-discrimination law to teachers already employed in schools does not necessarily sit easily with the facts of the current case where the claimant had been employed for 34 years in the current school and was, on the argument of the respondents and the notice parties, denied the protection of anti-discrimination law in direct contradiction to that accepted position.
65. Following these negotiations an agreed text of the Directive introduced on 27 November 2000 included at Article 15(2):-
“In order to maintain a balance of opportunity in employment for teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities there, the provisions on religion and belief in this Directive shall not apply to the recruitment of teachers in schools in Northern Ireland insofar as this is expressly authorised by national legislation.”
66. The Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003 implemented the Directive that came into force on 10 December 2003. Regulation 30 amended the relevant provision in the 1998 Order to its current form so that the exemption applied to the recruitment of a teacher and did not apply to the general employment conditions of a teacher. It stated:-
“30-(1) In Article 71 of the Fair Employment and Treatment Order (Schoolteachers) for Paragraph (1) substitute –
‘(1) Subject to Paragraph (2) –
(a) Part VII does not apply to or in relation to employment as a teacher in a school and
(b) the other provisions of this Order do not apply to or in relation to the recruitment of a person as a teacher in a school’.”
Part VII relates to monitoring requirements. The exemption applied to every other part of the Order and therefore applied to discrimination on the ground of political opinion. It is apparent that counsel in initial submissions and argument took the view that the exemption applies only to the prohibition of discrimination on the ground of religious belief. The claimant’s representative’s skeleton argument at Paragraph 51 makes if plain that he was at one point of the view that the exemption did not include discrimination on the ground of political opinion and he argued that this demonstrated a lack of justification. When that position altered, he argued with insouciance, but with accuracy, that this different position also demonstrated a lack of justification. The claimant’s representative and the Notice Parties’ representative’s submissions were also consistent with this apparent belief. They were at least silent on the issue of political opinion discrimination, particularly insofar as it elated to justification. It may be that this misunderstanding took hold because the Directive related to religion and belief only. However it is clear that the exemption in Article 71(1)(b) also applies to the wide field of discrimination on the ground of political opinion. That encompasses not just orange/green dichotomies but also left/right divisions – see NIPSA v McKay [1995] IRLR 146.
67. In October 2003 the Equality Commission had commenced an investigation into the ongoing teachers exemption which was shortly to be amended in any event in December 2003. It invited public comment. On 5 July 2004 the Equality Commission provided a report of its investigation. It concluded that there was little evidence of widespread support for change in the arrangements and stated that the Commission had formally recommended to OFMDFM that teachers in schools should come within the ambit of religious discrimination provisions in the then to be considered Single Equality Act.
68. It stated:-
“The Equality Commission formed the view that the exception of teachers from the legislation outlawing religious discrimination should at present be retained for mainstream primary school teachers only. The protection that is presently available on the grounds of religious belief and political opinion should be enhanced to include all teachers in monitoring and review duties. However the exemption of teachers from Part III of the legislation (discrimination in the employment field) should continue for mainstream primary teachers. The Equality Commission formed this opinion in light of its consideration and the genuine occupational exemption permitted by Article 70(2) of the Fair Employment and Treatment Order would exempt many more posts in the maintained school and in the controlled school and accordingly reduce the relevant opportunity for Protestant teachers. This exemption permits the use of religion as a selection factor ‘where the essential nature of the job requires it to be done by a person holding, or not holding, a particular religious belief’.”
Again as an aside to the ongoing discussion of the historical process, it has to be remembered in the context of the present case that this concerns a position in a large second-level and non-denominational school. The present case does not refer to a maintained school or to a primary school.
69. The report continued:-
“The Equality Commission believes that it is no longer acceptable to exclude the entire teaching workforce for the Fair Employment legislative provisions covering all other occupations in Northern Ireland.”
70. It is apparent that consideration of the teachers exemption continued sporadically and fitfully thereafter in the context of consideration of a single equality Bill and separately in the consideration of an education and skills authority. That continued from 2004 to the present day. For example, in 2007, the St Andrews Agreement included the following statement:-
“The Government believes in a single equality Bill and will work rapidly [Tribunal’s emphasis] to make the necessary preparations so that legislation can be taken forward by an incoming Executive at an early date.”
In 2007 a Private Members motion on a single equality Bill was proposed and a motion on such a Bill was debated in the Assembly. The motion was:-
“That this Assembly recognises that discrimination operates in many different ways and on many different levels and encourages the Executive to bring forward harmonising legalisation, in a single equality Bill, for discussion and consultation at the earliest opportunity.”
The motion was lost by 45 votes to 44.
71. On 4 October 2007, officials gave a presentation to Special advisers on a single equality Bill and identified the teachers exemption as a challenging issue.
72. On 5 February 2007, the Equality Commission wrote to Ministers in OFMDFM setting out the Commission’s priorities for legislative amendment. Among the six priorities was:-
“The Commission recommends the removal of the exception in the employment provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 as regards the recruitment of teachers in secondary level schools, and early consideration as to whether the exception should be removed as regards primary level schools.”
Further correspondence ensued. However no decisions were made in relation to this proposal during the lifetime of the 2007 to 2011 Assembly. Ministers confirmed that at that time there were currently no plans to change the exemption, that the Equality Commission’s proposals were under consideration and that there had been no recent discussions with the Department of Education in relation to the exemption.
73. In relation to the current Assembly, Ministers have asked officials to commission a review of existing equality legislation and have also indicated that they will not consider the issue of the teachers exemption until the Department of Education’s review of current and future recruitment opportunities in the teaching sector. No political agreement has been reached by Ministers in order to re-visit the legislation.
Decision
First Issue
Statutory construction
74. The first issue before the Tribunal is one of statutory interpretation according to the ordinary tenets of domestic law, ie was the appointment of a school principal in Castlederg High School, ‘the recruitment of a person as a teacher at a school’?
75. It was clearly a recruitment exercise. It was an open competition with external candidates. It related to a person and to a school. The only remaining issue is whether this recruitment competition for a ‘principal’ concerned a ‘teacher’ for the purposes of the 1998 Order.
76. The principles of statutory construction or interpretation to which the Tribunal has referred to itself are clear in the case law set out above and can be summarised as follows:-
(i) The intention behind the legislative provision is paramount.
(ii) That intention can be gleaned by considering the history of the provision and from other matters.
(iii) Comparison of contemporaneous provisions, ie the 50/50 PSNI recruitment rule and the statutory exemption of teachers is permissible.
(iv) The lack of a statutory definition where such a statutory definition was open to the draftsman has to be considered.
(v) Any attempt to encroach on fundamental freedoms must be strictly construed. If there are two alternative meanings, the meaning will be chosen that encroaches least on the fundamental freedom.
(vi) Any attempted ouster of the jurisdiction of a Court or Tribunal must be strictly construed. If there are two alternative meanings, the meaning will be chosen that will not oust jurisdiction or will oust it to a more limited extent.
(vii) If injustice is apparent on the face of the legislative provision and again if there are two alternative meanings, that meaning which would avoid the injustice would be preferred.
77. The term ‘teacher’ can mean a classroom or frontline teacher. It can also mean a qualified teacher who has moved on to other ‘spheres’ to adopt the respondents’ counsel’s phrase, such as a school principal but also a school inspector or an examiner.
78. If the passenger on a Clapton omnibus, or to use a more up-to-date analogy, a passenger on a Route Master manufactured by Wrightbus, were asked to identify the teacher of a primary school child, that person would inevitably and naturally identify the frontline or classroom teacher. Alternatively, if that individual were asked to identify the principal of a child’s primary school, they would inevitably and naturally identify the school principal. In ordinary usage, there appears to be little overlap. With second level education, if the same person was asked to identify the French teacher or the mathematics teacher for a particular second level pupil, that person would inevitably and naturally identify the particular frontline teacher. Again if that individual were asked to identify the principal of a second level educational institution, that person would inevitably and naturally do so by identifying that principal and not by picking at random one of the many frontline teachers who would be engaged in the actual day-to-day education of the child.
79. It is therefore clear to the Tribunal that there are two alternative meanings to the term ‘teacher’. If anything, the primary and natural meaning which could be accorded to this phrase is that of frontline or classroom teacher.
80. The Tribunal must also consider the context in which the statutory exemption appears. This is a legislative Code which prohibits the twin evils of discrimination on the ground of religious belief and discrimination on the ground of political opinion. The legislative Code determines that enforcement of those rights should fall to a specified Tribunal, ie the Fair Employment Tribunal. This can generally be regarded as a ‘good thing’. The claimant’s representative, with an enviable grasp of hyperbole, described the exemption as the ‘absolute nadir of the merit principle’. It is certainly an exemption which is, at first glance, surprising and which goes counter to the general run of legislation which prohibits discrimination. An exemption to the protection afforded by law against discrimination on the ground of religious belief, or indeed political opinion, must be construed strictly. Protection against discrimination on those grounds can only be classed as a fundamental freedom and it can only be presumed that any legislative provision which seeks to, if not to encourage that evil, to remove the protection against it, must be construed strictly.
81. Looking at the legislative history of the provision which has been set out above, it is clear that this provision was first put in place in 1976. Apart from one instance when the European Union forced the issue by the introduction of the Framework Directive, it has remained largely untouched. However, the change introduced by the introduction of the Directive was a change which sought to narrow the terms of the exemption to one which was related, and then only to the extent strictly necessary for national law, to the recruitment of teachers. If it had been intended that exemption should go further, that could and should have been provided for in clear terms.
82. For example, the 50/50 recruitment provision in relation to the PSNI is also specifically extended to support workers. That removes any doubt engendered in this matter. However, the term ‘teachers’ despite its obvious ambiguity is not further defined. It would have obviously been open to the draftsman to have referred to identified legislation and to have attracted a specified definition within that legislation. He chose not to do so. It can therefore only be presumed that the natural approach to interpretation of ‘teacher’ was to be one of strict construction.
83. The parties have referred, in their turn, to different parts of subordinate legislation relating to the terms and conditions and the payment of teachers. Each have referred to different parts of that subordinate legislation and each has attempted to put forward those parts as justification for their preferred interpretation of the term ‘teacher’. These Regulations were enforced from time to time to enact the results of pay and contractual negotiations. They were not considered or enacted with the Fair Employment provisions in mind. They were not specifically attracted by the draftsman. They are of no use to this Tribunal in relation to the question of statutory construction. The Tribunal has also been referred to, at length, the results of various assessments made by Government and by the Equality Commission of the views of the public in this regard. That again is of no assistance to the Tribunal in relation to this question of statutory interpretation. The Court or Tribunal applying the rules of statutory interpretation does not do so by way of an audience participation survey or by a procedure an analogous to that adopted in the X Factor. There is no scope for a phone-in.
84. Similarly the views of the Roman Catholic church and the views of the Protestant churches do not impinge on what amounts to a question of statutory interpretation. If the Assembly wishes to address this issue and either to repeal the provision, to re-enact and re-word the provision, or to consider the matter further, that is entirely a matter for them. However, part of the function of this Tribunal is to interpret legislation as it stands. If that legislation is to be changed that is a matter which falls to others. However that would require some positive action on the part of the Assembly and of the Executive.
In determining what is the appropriate and strict construction of Article 7(1)(b), the actual implications of this exemption in real life must be considered. The provision as currently drafted allows not only a Board of Governors to refuse to employ a person on the basis of his or her religion in the sense of the tired old ‘orange and green’ divisions within this society, it also permits several surprising results. For example, a Jewish mathematics teacher could be refused employment simply on the basis of his Jewish faith. A Muslim geography teacher could be refused employment simply on the basis of his faith. A Protestant teacher could be refused employment in a controlled school simply because his girlfriend was a Catholic. A Catholic could be refused employment in a Catholic school simply because he had a married a Protestant or because one of his children was being brought up a Protestant. A person of secular beliefs or a lapsed member of the Roman Catholic or of the Protestant churches could be refused employment on that basis. The scope of this exemption, which exempts the entire Order from the recruitment of teachers, has an even more surprising effect. It would allow discrimination on the grounds of left wing, or right wing politics, on the grounds of green politics or on the ground of any political opinion such as an opinion on the selection process at age 11. The scope of the provision following the decision in NIPSA v McKay would have been apparent to all concerned. There has been no attempt to modify the exemption or to focus it more precisely on the stated aim at any time, but particularly on the introduction of the Framework Directive, when a clear opportunity presented itself.
85. Lord Justice Girvan in the Flynn and Debast decision referred to the obvious need when considering the implications of an EU Directive, to have regard to the wording of the relevant provision in the other official languages of the EU. The alternative wording in the French and German versions of the Directive do not afford any support to the respondents’ position or to the position adopted by the notice parties. If anything, some slight assistance to the claimant’s position can be gleaned in that regard.
In the German version, ‘teacher’ appears as ‘lehrkraften’. That is different from the alternative word for ‘teacher’ which is ‘lehrer’. A literal interpretation of the former German word would appear to be more consistent with that accorded to a frontline or classroom teacher, ie one who actually practises teaching. It is in any event clearly different from the words which would ordinarily have been applied to a school principal such as ‘schulleiter’ or ‘schuldirektor’. Similarly, in the French version the word ‘teacher’ appears as ’enseignant’ which is entirely different from that which would ordinarily have been applied to a school principal, ie ‘maitre d’ecole’.
86. The unanimous decision of the Tribunal therefore is, applying the ordinary domestic rules of statutory interpretation and without feeling the need to go any further and to engage the European Convention, that the ordinary meaning to be attached to ‘teacher’ where it appears in the 1998 Order is that of frontline or classroom teacher. On that basis, the exemption in Article 71(1)(b), strictly construed as it should be, does not apply to the circumstances of the present case and the Tribunal has jurisdiction. It is an exemption which:-
(i) attempts to oust a Tribunal’s jurisdiction;
(ii) attempts to encroach on a fundamental freedom; and
(iii) presents an obvious injustice.
The matter will therefore be listed for a hearing on the substantive issue.
87. However it seems clear to this Tribunal that the matter will proceed further on an appeal. Certain matters, such as the inadvertent addressing of this Tribunal as ‘My Lords’ by learned Counsel, while flattering, seems to indicate that an appeal is in everyone’s contemplation. The Tribunal, although it feels that it is not necessary to do so for the purpose of the present decision, will therefore proceed to determine the second question as if it had been appropriate to do so.
Second Issue
The relevance of the Human Rights Act 1998 (‘the 1998 Act’) or the ECHR to the statutory exemption in the 1998 Order
88. To be clear, the unanimous decision of the Tribunal is that the term ‘teacher’ can and should be interpreted according to the ordinary domestic tenets of statutory construction as set out above. It is has not been argued before us, and is in any event clear, that ECHR law could, if relevant, only assist the claimant; it could not on any reading, assist either the interpretation advocated by the respondents or that advocated by the notice parties. The Tribunal therefore does not need to turn to ECHR law to consider whether it affords further assistance to the claimant’s argument on jurisdiction when that argument has been concluded in the claimant’s favour on the basis of domestic law alone.
89. However, as indicated, it seems plain that this jurisdictional question will go further on appeal. All arguments, including the ECHR argument, were addressed before us by three counsel with some industry. It would therefore be churlish not to seek to add to the confusion by giving the Tribunal’s view. This part of the decision is clearly obiter and is approached by the Tribunal simply on the basis of identifying the decision that it would have made in this respect if it had felt compelled to make such a decision.
90. Certain arguments in respect of the second issue have either fallen by the wayside or have not been pursued with any vigour. The claimant initially relied on Article 8 of the ECHR as replicated by the 1998 Act. That Article provides for a right to private and family life. It was not pursued in argument and in any event appears to the Tribunal to be irrelevant to the second issue.
91. The claimant also initially sought to rely upon the Charter of Fundamental Rights of the European Union (‘the Charter’). That argument was ultimately not proceeded with by the claimant and since submission of the original written arguments, which are attached to this decision, the Tribunal has decided in the case of McGurnaghan and Irvine v Chief Constable of the Police Service of Northern Ireland & Others [employmenttribunalsni – decisions] that the rights contained with the Charter do not provide any separate justiciable right before this Tribunal. The ECJ determined in the case of ‘NS [2012] ALL ER (EC) 2011’ that:-
“However, Article 1(2) of Protocol No 30 also appears to rule out new EU rights and entitlements being derived from Articles 27 – 38 of the Charter of Fundamental Rights, on which those entitled could rely against the United Kingdom or against Poland.”
92. Turning to what remains in relation to the second issue, the claimant, in relation to the second issue, seeks to rely on Article 6 of the Convention joined with Article 14 and, separately, on Article 9 of the Convention joined with Article 14.
Article 6 concerns the right to a fair trial. It appears to the Tribunal that there is an element of duplication in this argument. The exclusion of the claimant, and of all her professional colleagues, from the protection against discrimination afforded by the 1998 Order and the exclusion of the claimant and of all her professional colleagues from the jurisdiction of the Tribunal is precisely the same argument as that presented in relation to Article 9 together with Article 14. There is no merit in seeking to approach these matters separately. It appears therefore, to this Tribunal, that this is a matter requiring consideration of Article 9 either alone or together with Article 14.
93. The Fair Employment Tribunal is a statutory Tribunal and is not a court of inherent jurisdiction. It is not one of the courts listed in Section 4 of the 1998 Act. It has no power to issue a declaration of incompatibility.
The Tribunal’s consideration of the ECHR and of the 1998 Act must be informed by Section 3 and by Section 6(1) of that Act, but only if required, as an aid to statutory interpretation.
94. Section 3 provides that subordinate legislation such as the 1998 Order must be read and given effect to in a way which is compatible with human rights and Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with the Convention right. Section 6(3) defines a ‘public authority’ to include a Tribunal. The questions are therefore whether Articles 9 and 14 are engaged and, if so, whether the exemption can be justified, and if so, whether the interpretation of Article 71(1)(b) of the 1998 Order should, if it had been necessary, have been altered?
95. Article 9 provides that everyone has the internal right to freedom of religion. That right is unqualified. It also provides that everyone has the freedom to externally manifest one’s religion. In relation to that second right, ie the external manifestation of religion, it provides that it should be subject to only such limitations:-
“As are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
96. The respondents and the notice parties sought to argue that Article 9 has a very limited purview. It was argued, principally on the basis of the Court of Appeal decision in Parsons that it only applied where there was a serious and direct interference with one’s freedom of choice and with one’s freedom of practice in relation to religion. The Parsons decision concerned an applicant for employment in the PSNI who sought to challenge the 50/50 recruitment rule also set out as an exemption to the provisions of the 1998 Order. In that case, the challenge was based on Article 9 of the Convention on its own. The appellant did not seek to rely on Article 9 coupled with Article 14 of the Convention. The Court approached this matter as a situation where there was an unqualified right to the internal expression of religious beliefs. The claimant argued that the 50/50 rule in the appointment process tended to coerce or to induce candidates to abjure their faiths and to adhere instead to the Roman Catholic religion. This, it was argued, was an interference with the freedom of non-Catholics to maintain their religion and that it therefore breached Article 9. The Court held that:-
“There is a breach of Article 9(1) only where a certain level of disadvantage is reached … . That may occur when belonging to his religion is made so difficult for a complainant that in consequence of the acts complained of he is in effect being coerced to change his religion, eg if adherence of a certain religion were barred from all or substantial areas of work (as in Thlimmenos v Greece). This would comprehend the second and fourth of the suggestions advanced by Ms Tahzib which we have cited, but restrictions on the first and third would constitute a breach of Article 9(1) only if the restriction of freedom were sufficiently substantial.
That point is not generally reached where the complainant has a choice, which it is reasonable for him to exercise, whereby he is able to avoid the adverse consequences of the act or circumstances complained of and still maintain his own religion, eg by taking up other employment open to him.
On the facts of this case it may be contended that the disadvantages on the appellant in seeking employment as a police trainee because he was not a Catholic tended to make him consider abandoning his own religion. He was, however, free to seek and engage in other employment and no case has been made that his failure to obtain employment as a trainee police officer had a very substantial effect on his career or employability. We therefore consider that those disadvantages were not such as to involve a breach of his Article 9 rights.”
97. That decision was apparently based on the fact that a younger individual seeking a career in the police service would at his/her age and given his/her choice of career path have other options open to him or her. That cannot be said to be the case in the present matter where the claimant is coming towards the end of her career, has been teaching in the same location in the same school for 34 years and has already achieved a natural career progression. She has been stopped, she alleges on the ground of religious belief, at the very final stage of career progression. That on any reading of the alleged facts is a situation where, as in the Thlimmenos case, an individual faces a bar to a substantial area of work; it is also a situation where, on the alleged facts, there has been for the purposes of Parsons a ‘very substantial effect on his (her) career’.
98. The Tribunal has considered the Great Britain Court of Appeal jurisprudence in this area. It illustrates a substantial debate and an underlying disagreement on the part of some senior judges with the restrictive view taken by the Commission. In the case of Ahmad v Inner London Education Authority [1977] ICR 490, Scarman LJ in a disserting judgment, concluded that the need for a Muslim teacher to leave 45 minutes early on every Friday was no breach of his contract of employment. He was considering Section 30 of the Education Act 1944 which provided that no one should be prohibited from being a teacher in a state school by reason of his religious convictions. He stated:-
“A narrow construction … would mean that a Muslim, who took his religious duty seriously, could never accept employment as a full-time teacher, but must be content with the lesser emoluments of part-time service. In modern British society, with its elaborate statutory protection of the individual from discrimination arising from race, colour, religion or sex, and against the background of the European Convention, this is unacceptable, inconsistent with the policy of modern statute law, and almost certainly a breach of our international obligations.”
In the present case, again on the alleged facts, stopping an individual, who has already served as an acting principal, from becoming a substantive principal, on a discriminatory ground is, at least as serious as restricting someone from full-time work to part-time work.
99. In accordance with the 1998 Act, the Tribunal has considered the rulings of the Commission in Kontinnen v Finland [1996] 87 DR 86 and in Stedman v UK [1997] 23 EHRRCD 168 where the Commission considered the cases of individuals who were unable for religious reasons to work at certain times and were excluded from employment. The Commission concluded that the applications were manifestly ill-founded because the applicants had been free to relinquish their posts and had therefore not been pressurised into changing their religion. That, with respect to the Commission, is not the same position as pertains in the present case. This is not, on the facts alleged, a simple ‘hours’ case; this is an allegation of direct discrimination in relation to recruitment.
100. In Copsey v WWB Devon Clays Ltd [2005] IRLR 811, Mummery LJ was critical of these rulings by the Commission and stated:-
“In the absence of the Commission rulings, I would have regarded this as a case of material interference with Mr Copsey’s Article 9 rights. The rights would be engaged and interference with them would require justification under Article 9(2). Under the 1998 Act, however, this Court must take the Commission rulings into account so far as they are relevant in determining a question which has arisen in connection with a Convention right.”
101. Another judge at Court of Appeal level stated that Article 9 had been engaged. He stated:-
“Where an employer seeks to change the working hours and the terms of his contract of employment with the employee in such a way as to interfere materially with the employee’s right to manifest his religion, then Article 9(1) of the Convention is potentially engaged.”
A third judge indicated that Article 9 rights were irrelevant. Leave to appeal to the House of Lords was refused.
102. The rulings of the Commission, to which the Tribunal has had proper regard under the terms of the 1998 Act, are distinguishable from the alleged facts of this case. This is not an ‘hours’ case; it is an alleged act of direct discrimination in relation to recruitment on the grounds of religious belief. Having considered the Commission rulings and the case law, and in particular having considered the precise wording of the Parsons decision of the Northern Ireland Court of Appeal, the Tribunal concludes that Article 9 rights were engaged in this case, either on its own or in conjunction with Article 14 because there was a serious and substantial interference with the claimant’s right to pursue her career and employability. It is difficult to conceive of a more serious or a more substantial interference with a career.
103. The law has, in any event, moved on. The ECHR, to which under the 1998 Act we are compelled to have regard, has determined in Eweida that the possibility of obtaining other employment is not determinative. It is simply one of the factors to be considered in the overall context of the case in a fact-sensitive issue. It must be considered against the actual personal circumstances of the claimant; in particular, against the clear and adverse impact on the ultimate stage of her career.
104. The Tribunal then turns to justification. The issue of justification for the purposes of Article 9 does not simply mean that the Tribunal has to determine whether or not the respondents considered that the exemption was justified or whether or not the State considered that it had imposed the exemption as applied to the claimant for a good reason. The question of justification is more narrow than that. First of all, the limit of the exemption must be one prescribed by law. That is clearly the case in the present circumstances. Secondly, the justification must be viewed against specific criteria, ie it must be necessary in a democratic society in either the interest of public safety, for the protection of public order, for the protection of health, for the protection of morals or for the protection of the rights and freedoms of others. Finally, justification is viewed as a matter of proportionality.
105. There is a pre-existing provision which allows a respondent to claim a genuine occupational qualification for the post in question. That would remain no matter what happens to the exemption in question.
106. The justification put forward for the exemption in Article 71(1)(b) on behalf of the respondents and notice parties is set out in the Directive at Article 15(2), ie:-
“In order to maintain a balance of opportunity in employment for teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities there, the provisions on religion or belief in this Directive shall not apply to the recruitment of teachers in schools in Northern Ireland insofar as this is expressly authorised by national legislation.”
The justification is therefore twofold: firstly, to maintain a balance of opportunity for employment between Protestant teachers and Roman Catholic teachers and, secondly, to further the reconciliation of historical divisions between Protestants and Roman Catholics.
107. In McFarlane (appellant) v Relate Avon Ltd [2010] IRLR 872, the Court stated at Paragraphs 24 – 25:-
“24 The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious belief. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such a dictated law; but the state, if its people are to be free, has the burdensome duty of thinking for itself.
25 So it is that the law must firmly safeguard to hold an express religious belief; equally firmly, it must eschew any protection of such a beliefs content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime.”
These remarks appeared in the context of a relationship adviser who wanted to restrict the scope of his work on grounds of his religious beliefs. However, the statements contained within Paragraphs 24 – 25 are equally applicable to the general proposition that discrimination on the grounds of religious belief can ever be justified within the terms of Article 9.
108. It is common case that the respondents in this case did not openly seek the benefit of the exemption and that they did not specify in the job specification or in the advertisement that the post was only open to Protestants. Indeed the claimant was interviewed for the post. Furthermore, it seems common case that the controlled schools do not openly avail of this exemption in advertising the recruitment of posts. Similarly, the integrated sector which is obligated to keep an appropriate balance in mind does not avail itself of this exemption and does not put into practice. There is therefore a dearth of actual evidence to the effect that this exemption assists in maintaining a balance of opportunity in employment between Protestant and Roman Catholic teachers. Equally, there is no evidence that this part of the justification relates to public safety. There is no evidence that public safety would be harmed in any respect by prohibiting discrimination in this field in the same way as discrimination is prohibited in other fields. There is no evidence that the exemption assists in the protection of public order, health or morals. The morality, peace or health in staffrooms or in schools is unlikely, on the evidence before us, to break down or be adversely affected by the removal of this exemption. There is no evidence before us that the exemption protects the rights and freedoms of others in the context of the Convention. If the exemption is not apparently or openly relied on and is not put front and centre in the job specifications, it is difficult to see how removal of that exemption would impact on the rights or freedoms of anyone.
109. Turning to the second part of the justification, ie to further the reconciliation of historical divisions between Roman Catholics and Protestants, institutionalising, if not encouraging, discrimination on the ground of religion seems to this Tribunal to be a peculiar way to go about assisting in reconciliation. Furthermore, allowing open discrimination against Jews or Muslims, or against non-believers or lapsed members of the Roman Catholic church or of any of the Protestants churches does not appear, to the Tribunal, to be in any way connected with reconciling historical divisions between Roman Catholic and Protestant communities. Enabling a decision not to recruit someone whose girlfriend or whose partner is of a different religious background does not fit easily with the stated justification for this provision.
110. Looking solely at the issue of proportionality in terms of the justification, it is difficult to see how the current exemption could satisfy that test. In other circumstances, there was a 50/50 recruitment target imposed on the PSNI. One would have thought that either a similarly carefully worded exemption or a simple reliance on genuine occupational requirements was a more proportionate way of addressing either of the stated parts of the justification.
111. The Tribunal has already pointed to the potential effect, which appears to it to be disproportionate, of the effect of Article 71(1)(b) in relation to religious belief. A provision which, on its face, permits discrimination to occur on the basis that a job applicant’s wife (or grandmother) is of the Jewish faith cannot hope to satisfy the test of proportionality in relation to the ECHR which came into being in its own particular circumstances. The Tribunal accepts that neither the respondents or the notice parties would wish to apply the exemption in such circumstances. However, if they want to argue justification and proportionality, they must be prepared to deal with the statutory exemption as it is worded and to deal with the law of unintended consequences.
112. As indicated above, in relation to the first issue, counsel also appeared to be of the belief in initial argument that this exemption applied only to discrimination on the ground of religious belief. That would reflect the scope of the Framework Directive. However the scope of the exemption in Article 71(1)(b), which applies to all the provisions of the Order (other than monitoring) applies equally to discrimination on the ground of political opinion such as left-wing trade union views. Since NIPSA v McKay [1995] IRLR 146 and Gill v NICEM [2002] IRLR 74, everyone would have been aware that unlawful discrimination on this ground would refer not just to Unionists or Nationalists, but to wider issues of political opinion. If there is a logical or proportionate basis for permitting such discrimination in the context of the recruitment of teachers, it eludes this Tribunal.
113. The Tribunal therefore concludes that Article 9 on its own would be engaged and that is has not, on the evidence before this Tribunal, been justified. If the matter had not already been resolved as a matter of domestic statutory interpretation, the Tribunal would have had to rely on Article 9 and to have relied on it to interpret the exemption as strictly and a narrowly as it could. If the claim had involved recruitment to a classroom teacher’s post, the Tribunal may simply have read out the entire exemption. Thankfully, it does not, in this case, have to address that issue. In the circumstances of the present case, it would simply have strengthened its original view that ‘teacher’ does not, in this context, include ‘principal’.
114. Turning to the relevance of Article 9 read in conjunction with Article 14, the one remaining issue is whether or not the claimant has established an appropriate comparator for the purposes of Article 14.
115. The law relating to comparators is best set out in the decision of Lord Nicholls of Birkenhead judgment in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 at Paragraphs 7 – 11:-
“7 With this introduction, I turn to consider the application of these provisions in practice. In deciding a discrimination claim, one of the matters Employment Tribunals have to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination or victimisation, in practice Tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the less favourable treatment issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the reason why issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less-favourable treatment issue is treated as a threshold which the claimant must cross before the Tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.
8 No doubt there are cases where it is convenient and helpful to adopt this two-step approach to what is essentially a single question : did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason- why issue. The two issues are intertwined.
9 The present case is a good example. The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the Sex Discrimination Act 1975 which, for ease of discussion, I have referred to. Chief Inspector Shamoon claims she was treated less favourably than two male Chief Inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male Chief Inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But this whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male Chief Inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.
10 I must take this a step further. As I have said, prima facie, the comparison with the two male Chief Inspectors is not apt. So be it. Let it be assumed that, this being so the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male Chief Inspector regarding whose conduct similar complaints and representations had been made. On this footing, the less favourable treatment is this: was Chief Inspector Shamoon treated less favourably than such a male Chief Inspector would have been treated? But here also the question is incapable of being answered before deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male Chief Inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male Chief Inspector in her position would have been treated. If not, not. Thus on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason-why issue. And the decision on the reason-why issue will also provide the answer to the less favourable treatment issue.
11 This analysis seems to point to the conclusion that Employment Tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on a prescribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it some other reason? If the latter, the application fails. If the former, there would usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.”
116. Shamoon related to discrimination under domestic statutes. However the reasoning appears to be equally applicable to discrimination under the 1998 Act or under the Convention. In the present case the allegation is that the failure to appoint the claimant as a substantive principal of Castlederg High School was on the basis of her religious belief. There is therefore a clear allegation of discrimination on a prescribed ground under Article 9 combined with Article 14. The issue is would she have been treated differently if she had been of a different religious belief? The identification of a hypothetical comparator of whatever precise description, does not appear to this Tribunal to pose a real difficulty.
117. The position was further analysed in the decision of Lord Hoffmann in Watt (formerly Carter) v Ahsan [2008] IRLR 243 at Paragraphs 36 – 37:-
“36 The discrimination – is defined – as treating someone on racial grounds ‘less favourably than he treats or would treat other persons’. The meaning of these apparently simple words was considered by the House in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:-
(1) The test for discrimination involves a comparison between the treatment of the complainant and another person (the statutory comparator) actual or hypothetical, who is not of the same sex or racial group, as the case may be.
(2) The comparison requires that whether the statutory comparator is actual or hypothetical. The relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from those of the complainant …
(3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a Tribunal may infer how a hypothetical statutory comparator would have been treated: See Lord Scott of Foscote in Shamoon at Paragraph 109 and Lord Rodger of Earlsferry at Paragraph 143. This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the evidential comparator) to those of the complainant and all the other evidence in the case.
37 It is probably uncommon to find a real person who qualifies – as a statutory comparator. Lord Rodger’s example at Paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are ‘materially different’ is often likely to be disputed. In most cases, however, it will be unnecessary for the Tribunal to resolve this dispute as it should be able, by treating a putative comparator as an evidential comparator and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the Tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether the actual person was a statutory comparator.”
118. The claimant argues that an appropriate hypothetical comparator would be either another member of a professional grouping seeking to allege religious discrimination in relation to a failure to recruit or alternatively her own position if she had sought to lodge a claim of race or gender discrimination in relation to recruitment. In the opinion of the Tribunal the central issue is the reason on which the treatment was afforded. If the reason for the treatment was as alleged by the claimant, the issue of identifying a hypothetical comparator is not difficult and either of the two examples put forward by the claimant would suffice.
119. The matter will now proceed to a Case Management Discussion to arrange the listing of the substantive hearing.
Vice President:
Date and place of hearing: 6 February 2013; and
12 February 2013, Belfast
Date decision recorded in register and issued to parties:
_________________________
Anne Moore (Claimant)
-v-
Western ELB and
Board of Governors of
Castlederg High School and Ors (Respondents)
&
Office of the First
& Deputy First Minister
Department of Education Northern Ireland (Interested Parties)
CLAIMANT’S SKELETON ARGUMENT ON THE PRELIMINARY ISSUE
Introduction:
1. The Claimant respectfully submits that this case raises the question as to whether the Fair Employment Tribunal (FET) has jurisdiction to hear a claim for religious discrimination brought relating to the non-appointment of the Claimant in a recruitment exercise for the post of Principal of Castlederg High School.
2. The preliminary issue has been reformulated as;
1. Whether the FET has jurisdiction to consider the Claimant’s claim of religious discrimination in connection with her non-selection for the post of School Principal of Castlederg High School or whether jurisdiction is excluded by operation of Article 71(1)(b) of the Fair Employment and Treatment (NI) Order 1998, in that “teacher” can and should lawfully be construed to mean for instant purposes “principal”.
2. If “teacher” can and should lawfully be construed to include a “principal” whether the exemption from protection against religious belief/political opinion created by Article 72(1)(b) of the 1998 Order and Article 15(2) of the EU Framework Directive on Equal Treatment in Employment and Occupation 2000/78 is contrary to Articles 6, 8, 9 and 14 of the European Convention on Human Rights.
3. Article 71(1)(b) and Article 71(1A) of the Fair Employment and Treatment (Northern Ireland) Order 1998 expressly exclude teacher recruitment exercises from the Order’s anti-discrimination provisions. This area of law was considered by the Court of Appeal in Flynn and Debast ([2007] NICA 56), which considered the meaning of “recruitment” for the purposes of the Order. There would NOT appear however to have been any previous judicial consideration as to whether the exclusion in the above legislative provision should be seen to extend to the post of school principal. It is the Claimant’s
submission that for current purposes teacher does not include school principal and that accordingly the Article 71 exemption does not apply in this case.
4. Further and in any event, the Claimant submits that the exemption
provided for by Art
71 FETO and behind that by Art 15 of the EU Framework Directive is contrary to
the ECHR and should accordingly be read down by the Tribunal in such a fashion
as to allow her the protection of the FETO provisions prohibiting
discrimination in recruitment provision that would otherwise apply. It is
notable that the focus of the Interested Parties’ evidence on this issue has
been on the justification for the existence of the exemption as opposed
to any contention that its impact does not amount to discrimination on the
ground of status as a teacher in Northern Ireland.
Legislative Position:
5. Article 71 of the Fair Employment and Treatment (Northern Ireland) Order 1998, was amended to give effect to the EU Framework Directive on equal treatment in employment and occupations. That Directive, which pursues the elimination of all forms of discrimination includes an exception in Article 15(2) whereby the provisions of the Directive “shall not apply to the recruitment of teachers in schools in Northern Ireland in so far as this is expressly authorised by national legislation” (emphasis added). Article 71(1)(b) and article 71(1A) are the resulting provisions of national legislation that give form to the exemption in Article 15(2). They provide:
“71 (1) Subject to paragraph (2)—
(a) Part VII does not apply to or in relation to employment as a teacher In a school: and
(b) the other provisions of this Order do not apply to or in relation to the recruitment of a person as a teacher in a school.
(1A) For the purposes of paragraph (1)(b) “recruitment” means any step in the process of engagement of a person for employment up to the commencement of the employment”
Facts relevant to the Jurisdictional Issue:
6. The relevant facts do not appear to be in dispute between the parties:
7. The Claimant has worked at the School for approx. 34 years. She cannot recall any occasion during that time where the Principal undertook teaching duties, either on a planned, scheduled basis, or on an emergency, cover basis.
8. The Claimant was Vice-Principal from approx. 2000. In that role she had half a teaching role of 18/45 teaching periods to allow time for her other management duties.
9. When she undertook a period of acting-up as Acting Principal during a period of the Principal’s absence she undertook no teaching duties, a supply teacher being employed to cover her 18/45 teaching duties.
10. In the replies to Notice for Additional Information the Respondents have stated,
The persons in post as Principal of Castlederg High School since 1st January 2007 have not been (and are not currently) timetabled to carry out particular teaching duties in the school. The post holders however as teachers appointed to the post of principal have at all times been subject to the Teachers (Terms and Conditions of Employment) Regulations (NI) 1987 (as amended) and in particular Schedule 1 paragraph 4 (23)
11. The Respondents hold themselves out to be equal opportunities employers. The recruitment exercise in this case was not stated to be limited to Protestants. The Respondents do not openly rely upon the exemption in the sense of saying that in fact there was discrimination against the Claimant’s candidature on the basis of her religious beliefs and that is the reason why she was not appointed.
12. The Interested parties give various explanations for the justification for the exemption. The Claimant submits that in essence this relates to a contention on the part of the Government that it is necessary in order to ensure the adequate balance in the workforce between Catholic and Protestant teachers and this in the Northern Ireland context aids in the reconciliation of the historic conflict between those two traditions.
The Claimant’s Position on Question 1:
13. The Claimant contends that the exemption in Art 71 FETO does not apply in the instant case as the recruitment competition in question was for the post of School Principal rather than a teacher.
The Respondent’s Position on Question 1:
14. It appears to the Claimant that the Respondent’s position is that for instant purposes a school principal is a teacher, and is therefore (indirectly) covered by the Art 71 exemption.
15. In its replies the Respondent states;
The Respondents contend that a school principal Is a
qualified
teacher appointed to a principal’s post. Such a contention is based upon the
contractual arrangements pertaining to teachers appointed to the post of
principal - such arrangements being statutorily enshrined in the Teachers
(Terms and Conditions of Employment) Regulations (NI) 1987. These Regulations
make It quite clear that a school principal is a qualified teacher appointed to
that post (see Regulation 2). It is therefore self evident from those
Regulations that the term ‘teacher’ includes both a teacher and school
principal and In this regard attention is also drawn to the wording of
Regulation 5 and paragraphs ‘1 and 2(a) of Schedule 3.
The Respondents will also rely on Article 69 of the Education and Libraries (NI) Order 1986 which Is entitled ‘Salaries and other Terms
and conditions of Employment of Teachers’. Statutory
determinations issued by the Department of Education pursuant to Article 69(1)
and (6) of the 1966 Order address the salary ranges of both principals and
teachers. A copy of DE Circular 2010/19 dated 1st September 2010 is
attached.
In addition, teachers appointed to the post of principal have at all times been subject to Schedule 1 paragraph 4 (23) of the Teachers (Terms and Conditions of Employment) Regulations (NI) 1987 (as amended).
The Respondents contend that in the light of these statutory provisions underpinning the terms and conditions and salaries of teachers, the term ‘teachers includes ‘principal’ and accordingly the exemption contained within Article 71 of the Fair Employment and Treatment (NI) Order 1998 applies to the post of a principal within a school.
Additionally, as is clear from the Job Description for the post of Principal of Castlederg High School, the Respondents require the Principal to carry out his/her professional duties in accordance with the terms and conditions of employment of principals as set out In Schedule 1 to the Teachers (Terms and Conditions of Employment) Regulations (NI) 1987; Furthermore the terms and conditions of service for the post ‘are those for teachers in accordance the Teachers (Terms and Conditions of Employment) Regulations (NI) 1987’. The successful candidate also required to be registered with the General Teaching Council on Northern Ireland upon taking up employment.
The Respondents will also rely upon the essential criteria for the post of Principal to Castlederg High School which required applicants to be ‘qualified teachers as recognised by the Department of Education to teach in a grant-aided school’ and have a minimum of 10 years teaching experience in a post-primary school’ with at least 3 years experience of holding a promoted post of at least 3 teaching allowances or post of principal or vice-principal or an equivalent.
Argument on Question 1:
16. The Claimant accepts that in order to meet the eligibility criteria for appointment to the post of school principal one must be a qualified teacher. The latter qualification is the gateway or condition precedent to the former position.
17. However it does not follow that the post of principal is a teaching post or that the person holding that post is a teacher. Rather it is that a teacher appointed to that post becomes a Principal.
18. Further, both on the specific facts of this case and more generally on consideration of the terms and conditions of employment of principals imposed by Statutory Rule1, the School Principal post is not a teaching post. The Professional duties of the Principal are set out at Sch 1, para 4. There are 23 duties listed, with only the last one sounding on the role of a teacher, in passing. This compares markedly with the duties of a Vice-Principal2 , and a teacher3.
19. It is further specifically of note that the 1937 Regulations categorises Principals, Vice- Principals and Teachers separately.
20. A similar approach of delineation can be found in the pay arrangements (both pay notices and statutory provisions).
21. Also; the Teachers’ Negotiating Committee (TNC) Workload Agreement (TNC 2011/8) delineates between teachers, vice-principals and principals (para 1 & 4.2). The agreed procedures for dealing with unsatisfactory work differ for principals and for teachers, including vice-principals. (October 1997).
22. The Claimant further notes that pursuant to Regulation 3 of the 1987 Regulations they only apply to teachers employed in grant-aided schools, peripatetic and supply teachers. Accordingly they do not apply to teachers and principals of private schools. This amply demonstrates the inherent weakness in placing reliance upon the definition (if that is what it amounts to) of Principal from one statutory provision as providing the definition in another statutory scheme entirety. In other words, on the Respondent’s argument publicly-funded school principals may be caught by the exemption whereas those in private schools may not.
__________________________
1 Reg 4 & Sch 1, Teachers’ (Terms and Conditions of Employment) Regulations (NI) 1987 (SR 1987/ 267).
2Sch2
3Reg 5
& Sch 3
23. More fundamentally the Claimant contends that whatever the domestic interpretation of the term teacher it is clear that the FETO Art 71. and Art 15(2) of the Framework Directive 2000/78/EC from which it flows do not define the term so as to include a Principal.
24. The Claimant says that the FET should be slow to over-interpret the simple word teacher. Had it been the intention to extend the exemption beyond the normal meaning of a teacher to specifically exclude the recruitment of school principals from the normal protections against inequality discrimination then both legislative provisions could have easily been so constructed.
25. It is respectfully submitted that this becomes all the clearer when the legislative context is understood.
26. Recitals 1, 4, 5, 6, 11, 12, 23, 29 & 34 and Articles 1-3, & 9 of the Framework Directive speak to the general application of the principle of equality of treatment in EU law, and, this Directive in particular and to the limited circumstances where exceptions to that norm will be justified.
27. Article 15(2) disapplies the provisions on religion or belief to the recruitment of teachers in schools in NI in so far as this is expressly authorised by National legislation. Teacher is not expressly defined to have an extended meaning including principal. This stands in stark contrast to the approach adopted at Article 15(1) to the corresponding exemption from protection for recruitment into the Police Service of Northern Ireland, where it is specifically stated that that exemption includes its support staff.
28. In the interpretation of EU law (and domestic provisions designed to give effect to same) the principle of equality is a fundamental concept.
29. In both EU and domestic law, anti-discrimination instruments will attract a purposive approach to construction with a view to enhancing and strengthening the general precept of equality.
30. In the instant case the Respondent urges the FET to recognise an EU sanctioned exclusion from the normal protections of anti-discrimination law where same is not specifically stated and. is not the only implication of the instrument as constructed.
31. In the absence of a clear and unambiguous extension of the exemption to principals the FET’s default position should be to interpret both the FETO and the Framework Directive in line with their mission and raison d’etre- i.e. the removal of discrimination in the workplace/labour market
32. If the Respondent’s position were to be adopted then rhetorically one might ask where the line will be drawn?- would classroom assistants or lunchtime supervisors be included in the exemption?
33. As a further aid to interpretation the Claimant prays in aid the provisions of Articles 6, 9 & 14 ECHR. [These issues will be further developed in following sections of this skeleton).
34. The Tribunal’s attention is also drawn to the statement filed on behalf of the OFMDFM by Mr. Duffy, and in particular paragraph 17 thereof where he confirms that European Commission’s intention in agreeing to the exemption in the Framework Directive negotiations was that it would “relate only to the recruitment of teachers rather than their terms of employment, harassment, promotion etc.” (emphasis added).
35. The Claimant contends that in this case it is in reality a promotion as the appointment of a School Principal will inevitably involve promotion from the ranks of teacher simpliciter.
The Claimant’s Position on Question 2:
36. The exemption (both as found in domestic law and in the Framework Directive) is in breach of various provisions of the ECHR and falls to be disapplied/read down by the Tribunal in order to achieve compliance with the Human Rights Act 1998. [The exemption also falls foul of Art 20 of the Charter of Fundamental Rights of the European Union (2000/C364/01), which provides for non-discrimination on the grounds of religion].
37. Art 9 ECHR protects the right to hold and manifest one’s religious beliefs. The exemption facilitates the Respondents’ alleged discrimination against the Claimant on the basis of religious belief.
38. Further Art 9 read with Art 14 prohibits discrimination against the Claimant in being able to hold and manifest her religious beliefs on the basis that she was applying for the post of a teacher (assuming for the moment that Principal equals teacher) compared with the protection afforded to any other category of job candidate. In other words it is only those seeking recruitment as a teacher in Northern Ireland who are excluded from the protection against discrimination on grounds of religion that are enjoyed by all other job candidates in Northern Ireland.
39. Further
the Claimant is deprived a right of access to the Court (Tribunal) to secure
satisfaction of her civil rights and obligations in the context of recruitment
on the basis of her status as a teacher candidate and as such there is a breach
of Art 6 read with Art
14.
Interested Parties’ Position on Question 2:
40. The Interested Parties’ position on question 2 remains unclear. Neither Department has filed a response to the Tribunal claim, having been joined as parties. Furthermore, neither Department’s witnesses have addressed the question of breach of the ECHR directly in their witness statements. [It is accepted however that they have sought to address the question of justification].
Argument on Question 2:
41. The
Claimant submits that the exemption can only be seen as leaving her open to
discrimination on the grounds of her religion in breath of Art 9 and that furthermore on the basis of her status as a teacher
candidate she is treated differently to any other job
candidate in that she cannot rely upon the protection of the FETO law to
protect her from religious discrimination in recruitment contrary to Art 9 and
14 ECHR read together.
42. The kernel of this aspect of the case is whether the interested parties can establish justification for these otherwise clear breathes of the ECHR. This requires the Tribunal to be satisfied that there is an objective and reasonable justification.4 This in turn requires that the difference in treatment pursues a legitimate aim and that there is a “reasonable relationship of proportionality between the means employed and that aim”5 This is a burden falling on the State and the discharge of it has been described as a “weighty and substantial task”.6
43. The legitimate aim relied upon would appear in to be that set out in pan 12 above. However it should be noted that the State’s setting out of the basis for the exemption has not always been uniform.
44. The proportionality of the difference in treatment requires consideration as to whether the State has struck a fair balance between the protection of the interests of the wider community and the respect to be afforded to the rights and freedoms safeguarded under the ECHR7
45. The State must establish each of the following:
(i) The legislative objective must be sufficiently important to justify the limiting of a fundamental right.
__________________________
4
BelgIan Linguistic Case (No 2) (1968) 1 EHRR 252, para
9
at para 32.
5 See for example, Fayed v UK (1994)18 EHRR 393 at 432, para 71.
6 Carson and Reynolds v SOS for Work and Pensions [2003] 3 All ER 577, CA, para 72.
7Selgian Linguistics ibid, para 9.
(ii) The measures designed to meet that legislative
objective must be rationally connected to that objective rather than arbitrary,
unfair, or based on irrational considerations.
(iii) The measure used to impair the right or freedom must be no more than
strictly necessary to achieve the legitimate aim.
46. The Tribunal is reminded that in discharging this burden. it is not sufficient for the State to simply rely upon generalisations as opposed to objective evidence8 The Claimant submits that the State’s entire case about the necessity of the exemption is based upon generalisations and not hard fact. For example there is no evidence that in the absence of the exemption a glut of Catholic teachers would exist to flood the controlled sector job market, nor indeed that they would desire to work in that sector in significant numbers.
47. The Claimant primarily relies upon the following factors in submitting that the three- limbed test above cannot be discharged by the State in this case;
48. It is a particularly serious matter to permit/facilitate the discrimination of a person on the basis of religious belief. The exemptions operate in the face of decades of widespread prohibitions on such discrimination, which has a particular resonance in the Northern Ireland context. The exemption marks a nadir in the application of the merit principle.
49. There is no objective evidence that the exemption is necessary to maintain the sought balance in the workforce. In fact the input from the Equality Commission’s consideration of this matter would strongly suggest that it is not the exemption that secures the balance in the workforce but the chill factor that operates to segregate the workforce irrespective of the legal exemption.
50. The exemption goes well beyond that which would be strictly necessary even on the State’s argument; for example;
• It operates as a blanket ban on the offering of protection to a member of the Hindu faith refused a job as a teacher on the basis of his religion.
• Similarly a
Catholic seeking a job as a teacher in a maintained school could be
• discriminated against without restriction simply on the basis that Ms/her
spouse is a Protestant.
• A Catholic teacher in a maintained school who converts to a Protestant denomination could not be dismissed, but a member of his Church who becomes a candidate for a job in the same School as him in could lawfully be passed over on the basis of the religion they share.
___________________________
8
Marckx v
Belgium (1979)
2 EHRR 330, para 32.
51. Further,
the unnecessary nature of the exemption and its failure to rationally connect
with the legitimate aim put forward (balance in. the workforce) can be starkly
demonstrated when one considers that there Is no exemption from the protection
of FETO for discrimination in the recruitment of teachers based upon political
opinion. There is no State action to seek to ensure balance of the workforce on
that basis (i.e.:
Unionist/Nationalist).
52. Paras 3 - 7 of the Department of Education’s Statement gives further insight into the unnecessary nature of the exemption in relation to the legitimate aim relied upon. If the Protestant Churches that have retained a role in the management of most controlled schools felt that it was necessary in the sense of a genuine occupational requirement that a teaching post be filled by a Protestant candidate then they could seek to justify same under Art 70(2) FETO, without the need to rely upon the exemption at all.
53. The Equality Commission, with its statutory obligation to keep the exemption under review would appear to have adopted various positions re the continued need for the exemption. It is highly relevant to the assessment of the proportionality of the exemption that its current position would appear to be that the exemption should be narrowed in application to only mainstream primary schools, and consideration given to removing it entirely from all schools.
54. However the single most telling consideration going to illustrate the lack of proportionality of the exemption is the incontrovertible fact that the controlled sector does not actually deploy it as a measure of permitted positive discrimination. If the Respondents and/or the Interested Parties had evidence to demonstrate the open use of the exemption In recruitment exercises to limit same to candidates of one religion or another they have failed to disclose it. Rather, as is illustrated in this case the Respondents’ purport to act as Equal Opportunities employers in the recruitment exercise. It was not and is not suggested that the Claimant was not appointed in order to maintain balance in the workforce, nor was she openly deemed ineligible for the job of Principal on the basis of her religion.
55. Further it is to be noted that at appendix 8 of the Department of Education’s statement is to be found the Northern Ireland-wide “Equal Opportunities Policy for Teachers in Northern Ireland” which provides at 5.1 & 5.2,
“The Board will ensure that advertisements do not indicate, or appear to indicate, an intention to discriminate in recruitment, selection or promotion...
Eligibility criteria used for recruitment, selection or promotion must be related to ability to do the job and will be non-discriminatory.”
56. It is submitted that it cannot be seen to be a proportionate means to achieving a legitimate aim to permit the simple use of an exemption as cover for a hidden decision to refuse a job on the basis of the candidate’s religion as opposed to the exemption being deployed in an open fashion in a recruitment exercise open only to candidates of a particular religion in order to promote the purported legitimate aim of balance in the workforce. The former position simply serves to reduce the exemption to being a discriminator’s charter to be deployed tactically and cynically after the event of discrimination in order to protect against a Tribunal claim. This is manifestly unjustifiable.
57. It is perhaps also of note to consider the constitutional underpinning of the principle of Equality In the context of EU law;
58. The Treaty of Amsterdam 1997 provided for the inclusion of Article 19(1) of the Treaty on the Functioning of the European Union,
“Without prejudice to the other provisions of the Treaties arid within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”
59. This in turn provides the legislative basis for the Framework Directive (2000/78).
60. In a general sense the CJEU has recognised equality as a general principle of law.9
61. The Charter of Fundamental Rights of the European Union (20001C364/01) provides at Article 21(1),
“Any discrimination based on any ground such as sex,
race, colour, ethnic or social origin, genetic
features, language, religion or belief political or any other opinion,
membership of a national minority, property, birth, disability, age or sexual
orientation shall be prohibited.”
62. At
the very least this provides an aid to the interpretation of both EU and
domestic law. At its height it forms a basis of substantive challenge to the
lawfulness of Article 15 of
the Framework Directive and Art 71 of FETO.10
Conclusion:
63. The Claimant respectfully submits that a reading of all the documents disclosed by the Interested parties in truth displays a creeping realisation on the part of the government that they are defending the indefensible. In reality this ii a question of timing as to when the exemption is accepted as outmoded, ineffective and unnecessary. Simply the
________________________
9See Barnard, EU Employment Law, 4th ed, page 270.
10See discussion at pages 271-277 ibid.
Government has to date been unable/unwilling to grasp the nettle.
Meanwhile the Claimant and undoubtedly others are left without the basic
protection everyone else now takes for granted. The detrimental impact upon her
fundamental human rights outweighs any benefit that the exemption may offer in
actually securing the allegedly legitimate aim the State seeks to
achieve/maintain.
64. The preliminary issue questions should be disposed of as follows:
• The Tribunal does enjoy jurisdiction.
• A Principal is not a teacher for current purposes.
• In any event the exemption is contrary to the ECHR and the Human Rights
Act
1998.
Peter Coll
Barister
17th December 2012.
Case Ref No: 113/11 FET
IN
THE MATTER OF AN APPLICATION TO THE INDUSTRIAL
TRIBUNALS FOR NORTHERN IRELAND
Between:
ANNE MOORE
Claimant:
-and-
WESTERN EDUCATION AND LIBRARY BOARD & ORS
Respondents:
__________________________________________________________________
SUBMISSION ON BEHALF OF
RESPONDENTS
_____________________________________________________________
Adrian
Colmer
10.01.13
(1) The relevant legis1ation
1. A person’s holding of the post of “teacher” is regulated by the State through legislation:
a. Article 70(l)(a) of the Education and Libraries (Northern Ireland) Order 1986 (“the 1986 Order”) provides that the Department of Education (“the Department”) may make regulations as to the eligibility of persons to be employed as teachers.
b. Regulation 5 of the Teachers (Eligibility) Regulations (NI) 1987 (now superseded by Regulation 5 of the 1997 Regulations of the same name) (“the Eligibility Regulations”) provided that every person appointed as a teacher shall have such qualifications as may be approved by the Department
2. Further, the State determines the terms and conditions of teachers. Article 69 of the 1986 Order provides that the Department shall determine the rates of salaries, allowances and other terms and conditions of teachers.
3. In the relevant legislation, principals are regarded as one form of teacher:
a. Regulation 2 of the Teachers (Tents and Conditions
of Employment) Regulations (Northern Ireland) 1987 (“the Terms and Conditions
Regulations”) includes the following definitions (emphasis added):
i. “teacher” means qualified teacher;
ii.
“qualified teacher” means a
teacher who has such qualifications as are approved by
the Department under Regulation 5 of the
Eligibility Regulations; and
iii. “principal” and “vice-principal” means the teachers appointed to those posts in a grant-aided school.
b.
Regulation 5 of the Tents and Conditions Regulations provides that (emphasis added)
“the terms and conditions of all teachers other
than principals shall include the terms and conditions set out in
schedule
3...”
c.
Paragraph 1(1) of Schedule 3 to the Terms and Conditions Regulations states that (emphasis added) “a teacher
who is not a principal shall
carry out the professional duties of a teacher as circumstances
require’;
d. Paragraph 2(a) of Schedule 3 states that (emphasis added) “a teacher employed as a teacher (other than a principal) in a school shall perform, in accordance with any directions which may reasonably be given to him by the principal from time to time, such particular duties as may reasonably be assigned to him”
4. It is notable that although the legislation clearly recognises principals as one form of teacher, that same legislation also recognises that a principal need
only participate in the teaching of the pupils of the school to such extent as may, be appropriate having regard to her other duties — see paragraph 23 of Schedule 1 to the Terms and Conditions Regulations. That is to say, the fact that a principal may not actually teach does not take her outside the concept of teacher for the purposes of the legislation.
5. Further, in the application of the legislation, principals are regarded as one form of teacher. For example:
a. In exercising its statutory duty to determine the rates of salary, allowances and other terms and conditions of teachers, pursuant to Article 69 of the 1986 Order, the Department so determines the rates of salary etc of principals, Any determination published by the Department illustrates this point.
b. In the Teaching Appointments Scheme applied by the Western Education and Library Board under Article 153 of the Education Reform, (Northern Ireland) Order 1989, the Teaching Appointments Committee of the Board is charged with appointing in the name of the Board (emphasis added) “(a) Principals in controlled schools; (b) vice-principals in controlled schools; and (c) other teachers in controlled schools”.
6. It is thus clear that in the content of the legislation and in its application that:
a. A principal is a teacher; and
b. A principal is a teacher regardless of whether she actually teaches.
2. Is there any reason why a principal should not be regarded as a teacher?
7. Bennion on Statutory Interpretation (LexisNexis 5th Edition) 2008, asserts the following rules of statutory construction:
Section 195: The plain meaning rule: It is a rule of law ... that where, in relation to the facts of the instant case: (a) the enactment under inquiry is grammatically capable of one meaning only; and (b) on an informed interpretation of that enactment the interpretative criteria raise no real doubt a to whether that grammatical meaning is the one intended by the legislator, the legal meaning of the enactment corresponds to the grammatical meaning, and is to be applied accordingly.
Section 197: The conmonsense
construction rule: It is a rule of law
that when considering, in relation to the facts of the instant case, which of
the opposing constructions of the enactment would give effect to the legislative
intention, the court should presume that the legislator in tended common sense
to be issued in construing the enactment.
8. The legislation is plain and clear: principals are one form of teacher. The legislation admits of only one construction.
9. In the alternative, if the Tribunal is of the view that the legislation admits of more than one construction, then the construction, which regards principals as teachers, accords with the common sense construction rule.
10. Further,
this construction is perfectly consistent with the exemption in Article
15 of the Directive.
11. Indeed, it would be incongruous if the Article 15 exemption applied to teachers other than principals, but not to principals. The policy of the Directive is “to maintain a balance of opportunity in employment for teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities”. The structure of “employment for teachers” encompasses non-principals, principals, vice-principals and non- vice-principals. There is no logical, reasoned or principled basis for distinguishing between these various categories of teachers in the application of the policy of the Directive.
Adrian Colmer
10 January 2013
Case
Refs: 113/11 FET
FAIR EMPLOYMENT TRIBUNAL
Between:
ANNE MOORE
Claimant:
and
WESTERN EDUCATION AND LIBRARY BOARD
and
BOARD OF GOVERNORS OF CASTLEDERG HIGH SCHOOL & OTHERS
Respondents:
and
OFFICE OF TUE FIRST MINISTER AND DEPUTY FIRST MINISTER
and
DEPARTMENT OF EDUCATION
Interested Parties:
SKELETON ARGUMENT ON BEHALF OF THE INTERESTED PARTIES
INTRODUCTION
1. The Interested Parties make no comments or submission on the facts of this matter other than as pertain to the legal submissions made by the Claimants as appears from the following submissions.
2. The formulation of the preliminary issue as set out In the Claimant’s skeleton argument at paragraph 2 is accepted. In summary the Interested Parties say:
(a) For the purposes of operation of article 71(l)(b) of the Fair Employment and Treatment (NI) Order 1998 (“the 1998 Order”) “Teacher” is properly and lawfully construed so as to include School Principals; and
(b) The exemption created by Article 71(1)(b) of the 1998 Order and Article 15(2) of the EU Framework Directive on Equal Treatment in Employment and Occupation 2000/78 (“the Directive”) is not incompatible with Articles 6, 8,9 and 14 of the European Convention on Human Rights.
3. A number of minor matters arising out of the Claimant’s skeleton argument are addressed from the outset for the avoidance of doubt.
1
4. Although the preliminary issues as formulated by the main parties to the claim (‘without input from the Interested Parties) include reference to incompatibility with article 8 of the Convention. This issue is properly not pursued by the Claimant in her skeleton argument. Although the point is not specifically abandoned therein it is not referenced at all and the Interested Parties presume therefore that it is correctly no longer relied upon. If this is not the case the Interested Parties reserve the right to add to this skeleton argument and to seek time to address any fresh allegation raised as appropriate.
5. The Claimant asserts that it is notable that the focus of the interested parties’ evidence has been on the justification for the existence of the exemption “as opposed to any contention that its impact does not amount to discrimination on the ground of status as a teacher in Northern Ireland”. This is not notable. The evidence has focussed on the history behind and the need for the exemption as that is properly a matter of evidence.
6. The question of whether its impact amounts to discrimination on the ground of status as a teacher is a matter of legal argument and will be addressed as such, as will all issues going towards the question of whether the convention rights relied upon by the Claimant in this mater are engaged at all (which is not accepted). Only if the Tribunal finds that the exemption falls to be justified in law do the interested parties require to rely on their evidence in that regard. The kernel of the question is not whether the exemption is justified. Equally important is the question of whether the convention rights relied upon are engaged at all. If, as will be demonstrated, they are not then no issue of justification arises for determination.
7. Similarly the interested parties have not addressed the question of breach of the ECHR in their witness statements as these are legal issues more properly dealt with in submission and skeleton argument.
8. The interested parties have not filed a Response to the tribunal claim as they are not Respondents and have no jurisdiction to file a Response. Nor were they requested to file a response at any time by the Tribunal or by any party including the Claimant,
9. What is appropriate to set out every party’s position on these issues is the exchange of skeleton arguments and advance notice of the evidence to be given by the interested parties. Both of these suggestions were made by the interested parties who have very much adopted a cards on the table approach to this litigation.
10. Before moving on to address the two main issues in the case, by way of background, the relevant legal provisions are first outlined and an overview given of the inception and maintenance of the teacher’s exemption.
The Relevant Provisions
11. Article 71 of the 1998 Order reads as relevant:
2
71. - (1)
Subject to paragraph (2)-
(a) Part VII does not apply to or in relation to employment as a teacher in
a school; and
(b) the other provisions of’ this Order do not apply to or in relation to
the
recruitment of a person as a teacher in a school.
(1A) For the
purposes of paragraph (1)(b) “recruitment” means any step in
the process of engagement of a person for employment up to the commencement of
the employment.
12. This is consistent with and permitted by article 15(2) of the Directive:
“In order to maintain a balance of opportunity in employment for teachers in Northern Ireland white furthering the reconciliation of historical divisions between the major religious communities there, the provisions on religion or belief in this Directive shall not apply to the recruitment of teachers in schools in Northern Ireland In so far as this is expressly authorised by national legislation.”
The Inception And Maintenance Of The Exemption
13. The relevant evidence is set out fully in the witness statements of La’Verne Montgomery (Department of Education for Northern Ireland) and Frank Duffy (OFMDFM). The position can be summarised briefly as follows.
14. Since the inception of Fair Employment legislation in 1976, teachers have been exempt from protection against discrimination on the grounds of religious belief) The rationale for the exemption was as a result of the concerns expressed by various interest groups at the time of the dra1ing of the original legislation in 1976:-
• Roman Catholic educational interests were concerned that, without an exemption for teachers, the 1976 Act could eventually lead to a system of non-denominational education, with a resulting loss of Catholic ethos;
• Protestant educational interests
were concerned that, without an
exemption, Protestant teachers would be placed in an unduly unfavourable
position. They believed that the state education system would come within the
scope of the legislation, while the Catholic schools would not as they could
claim that religion was a bona fide occupational qualification. The concern was
that as a result Catholic teachers would have a right to equality of
opportunity in state schools but Protestant teachers would not have the same
right in Catholic schools.
15. In the absence of the exemption Catholic schools would have been able to claim that religious ethos was a genuine occupational qualification to favour Catholic applicants or exclude Protestant ones. Non-denominational schools could not have applied similar criteria. This would have led to an imbalance of opportunity with Catholic teachers enjoying equality of opportunity in applying for employment to both Catholic and State schools but with Protestant teachers being potentially disadvantaged in applications for
3
employment to Catholic schools. Such imbalance could in turn have led to an imbalanced workforce in the teaching sector. A sense of injustice and resentment in Protestant teachers and Protestants generally could have been fostered thereby inhibiting reconciliation between the communities.
16. Article 15(2) of the directive describes the purpose of the exemption as being
“In order to maintain a balance of opportunity in
employment for
teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities
there”.
17. Conscious of the risks, Northern Ireland Departments and the UK Government sought exemption from the Directive in relation to the recruitment of teachers in Northern Ireland. Following negotiations with the European Commission special provision was made in the Directive in relation to teachers in Northern Ireland. The relevant issues and risks particular to Northern Ireland were therefore recognised at European level and were acknowledged to be so significant as to warrant the exemption contained in the Directive.
18. Without the exemption
Catholic schools could, on the basis of Genuine
Occupational Requirement, recruit Catholic teachers in preference to teachers
from the Protestant community. State schools could not apply a similar
requirement .
19. Protestant teachers might not be able to meet the criteria to work in Catholic schools while Catholic teachers would be able to meet the criteria for both Catholic and State schools. Catholic teachers would be able to claim the protection of the 1998 Order in respect of job applications to State Schools but Protestant teachers could find themselves unable to claim the same protection in applying to Catholic Schools. Protestant teachers would have less opportunities for employment than Catholic teachers. Catholic teachers would enjoy an advantage over Protestant teachers in the overall employment market in schools in Northern Ireland.
20. Not only would this lead to an imbalance in the opportunities available to teachers of the different religions in Northern Ireland but it could foster a sense of unfairness amongst the disadvantaged group and a belief that Catholic teachers were securing jobs at the expense of Protestant teachers. This could undermine good relations and the peace process and inhibit the reconciliation of historian divisions between the major religious communities in Northern Ireland. The Claimant might well make the case that we in Northern Ireland have moved on beyond such concerns. Unfortunately recent events arguably demonstrate that we have not moved on as much we might have hoped.
A SCHOOL PRINCIPAL IS A TEACHER
21. The Directive does not define the term teacher. The term falls to be determined under national law. There is no definition of the term teacher or the term principal in domestic law sufficient to answer the specific question at large. Common sense and consideration of relevant domestic legislation does
4
however establish beyond doubt that in domestic law a principal is a teacher. The presumption is Implicit as will be seen.
22. The title ‘Principal” is synonymous with Head Teacher, Head Master, Head Mistress all of which clearly indicate that the Principal is a teacher. The word Principal is merely a more modem and gender neutral term which is to all intents and purposes interchangeable those terms. Indeed from school to school the use of all of those terms remains commonplace.
23. A Principal is and must be a qualified teacher. Therefore recruitment of a principal invariably involves and requires the recruitment of a teacher.
24. The contractual arrangements pertaining to Principals are statutorily enshrined in the Teachers (Terms and Conditions Of Employment) Regulations (NI) 1987. The said regulations clearly treat Principals as teachers and presuppose that a principal is a teacher.
25. Regulation 2 of the regulations defines “principal” and “vice-principal” as “the teachers appointed to those posts in a grant-aided school”. The same regulation defines “teacher” as “a qualified teacher”. The regulations apply to “teachers employed in grant-aided schools and to peripatetic and supply teachers” (regulation 3). The fact that they apply to principals (see regulations 2, 4 & 5 and the schedules to the Regulations) is clearly demonstrative of the fact that principals are teachers.
26. Article 69 (“Salaries and other Terms and Conditions of Employment of’ Teachers”) of the Education & Libraries (NI) Order 1986 deals with the salaries and other conditions of employment of teachers in, amongst others, controlled schools such as Castlederg High. As originally enacted, that Article provided for the rates of salaries to be prescribed in Regulations made by the Department of Education.
27. In the Teachers’ Salaries Regulations (NI) 1987 various salaries were set out referring to principals, vice-principals and teachers other than principals or vice-principals. Those regulations were amended every year to change the scales but the categories of principal, vice-principal etc. remained.
28. Article 69 was substituted by Article 42 of the Education and Libraries (NI) order 1993 so that Instead of the salaries being prescribed by regulations subject to negative resolution they were to be “determined” by the Department. Pay determinations issued since 1993 have followed the same structure as the old regulations, the most recent being the determination issued under cover of DE Circular No. 2010/19 dated 1 September 2010. These determinations refer to salaries and allowances to be paid to teachers in grant-aided schools and include the rates of pay applicable to principals.
29. The said regulations therefore further presuppose and demonstrate that a principal is a teacher. All of the applicable legislation as set out treats a principal as a teacher for the purposes of salaries and terms and conditions of employment.
5
30. A principal is a grade of teacher whether he/she does any actual face to face class teaching (as would happen in a small primary school) or whether the duties performed are entirely administrative/managerial as in a. larger primary school or in most secondary schools.
31. The Claimant seeks to make the case that construing a Principal as a teacher is over-interpretation of the simple word teacher and that the term teacher should be defined narrowly. The Claimant asks where the line will be drawn?- would classroom assistants or lunchtime supervisors be included in the exemption?
32. Any considered construction of the term teacher in domestic law includes Principals. All Principals are qualified teachers. They have always historically been teachers. They are considered as such in legislation even once appointed as principals. The reasoning and legislative provisions relied upon could never be applied or extended to classroom assistants or lunchtime supervisors. They are not qualified teachers - principals are.
33. Finally the Claimant contends that recruitment as a Principal is in reality nothing more than promotion horn the ranks of teacher. Principal is a post in a school not a promotion for life. If a Principal left his post in one school he would not necessarily secure another post as Principal in another school. This is not a demotion. He or she is and always will be a teacher. Perhaps recruitment from within the same school could be seen as promotion but such recruitment exercises are open to teachers in other schools not just to internal applicants. The Principal recruited may or may not be recruited from within the same establishment. What is certain is that the Principal recruited will be a qualified teacher.
34. Furthermore the Court of Appeal in Northern Ireland in Flynn and Debast ([2007] NICA 56 took detailed in argument in that matter that a promotion was not a recruitment before it concluded at paragraph 21 of the decision that “an appointment to a teaching post will not lose the characteristics of a recruitment exercise solely because it can be described in common parlance as a promotion,”
THE EXEMPTION IS NOT INCOMPATIBLE WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS
35. The Claimant argues that the exemption as found in domestic law and in the Directive is in breach of various provisions of the ECHR and falls to be disapplied to achieve compliance with the Human Rights Act 1998. From the outset it should be noted that the Tribunal has no power or jurisdiction to disapply a directive or to make any judgment as to its compatibility. The real question is whether the Tribunal has any jurisdiction which it can only have be disapplying the domestic exemption.
36. The individual allegations of incompatibility will be addressed in turn before a number of general matters are considered which confirm the lack of incompatibility and the lawfulness of the exemption.
6
Article 9
37. The Claimant relies on the engagement of article 9 rights in the circumstances of this case. Article 9 stipulates that;
“ARTICLE 9 FREEDOM OF
THOUGHT, CONSCIENCE AND
RELIGION
1. Everyone has the right to freedom of thought, conscience and
religion; this right Includes freedom to change his religion or belief
and
freedom, either alone or in community with
others and in
public or private, to manifest his religion or
belief in worship,
teaching, practice and observance.
2. Freedom to manifest
one’s religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the interests of
public safety, for the
protection of public order, health or morals, or for the protection of the
rights and freedoms of
others.”
38. Article 9 does not afford a general protection from discrimination on religious grounds. It is a freedom to hold a religion or belief and a freedom to manifest that religion or belief. This is construed narrowly. Application for employment cannot be on any interpretation the manifestation of a religious belief. Therefore the only issue which fans to be determined is whether the Claimant’s right to hold a religious belief has been engaged and breached.
39. Although there has not been any direct consideration of the compatibility of the teacher’s exemption in the context of article 9 a similar exemption has been considered in that light by the Court of Appeal in Northern Ireland. The only other exemption specific to Northern Ireland permitted by the Directive in the context of religious discrimination was that contained in article 15(1) of the Directive:
“1, In order to tackle the under-representation of one of the major religious communities in the police service of Northern Ireland differences in treatment regarding recruitment into that service, including its support staff shall not constitute discrimination insofar as those differences in treatment are expressly authorised by national legislation.”
40. That exemption was challenged by way of application for judicial review and subsequent appeal to the Court of Appeal in the case of Re Parsons’ Application [2003] NICA 20 (Parsons).
41. Interestingly the High Court on the application for judicial review and the Court of Appeal both accepted the jurisdiction of the High Court to entertain the application for judicial review on the basis that the jurisdiction of the Tribunal was ousted by the operation of the domestic legislation and the
7
Directive. The Judicial Review forum was
accordingly the correct forum in which to challenge the operation of the
legislative provisions In question.
42. Had there been any other forum open to the Applicant, namely the Fair Employment Tribunal, then the Judicial Review Court and the Court of Appeal could have refused to hear the ease on the ground that there was an alternative remedy open to the Applicant. which he ought to have exhausted before turning to the High Court. Not only was that argument not raised but the Court in fact specifically reached the opposite conclusion. The Tribunal had no jurisdiction to entertain the claim in question:
“[8] He cannot invoke the anti-discrimination provisions in the fair employment legislation, since the 50:50 rule is statutory and the Government obtained an exemption to cover it in the EU Directive 2000/78/EC. Before the judge he relied on Article 14 of the Convention, but the judge rejected his argument and counsel did not put forward any submission in this court based on Article 14. He disclaimed any desire to comment on the policy behind the Patten Report, the Act or the 50:50 rule — nor shall we make any such comment — and concentrated his argument on the compatibility of section 46(1) of the Act with Article 9 of the Convention.”
[-Parsons para 8]
43. In this case the teacher’s exemption is statutory and covered in similar fashion in the same EU directive. Therefore the same conclusion follows - the antidiscriminatory legislation cannot be invoked. Interestingly however if the Claimant did wish to challenge the implementation and maintenance of the exemption in question she could well have done so by way of application for judicial review as did Mr Parsons.
44. Having considered all of the various arguments the Court of Appeal ultimately concluded that article 9 rights were not engaged and breached in the case:
“[23] We respectfully agree with this reasoning and conclusion of Rix and Arden LJJ, which accords with those which we have reached on the principles to be applied. These may be encapsulated in the following propositions:
(a) It cannot be said that any act by which a complainant is disadvantaged because of his adherence to a particular religion constitutes an invasion of freedom to hold that religion for the purposes of Article 9(1).
(b) There is a breach of Article 9(1) only when a certain level of disadvantage is reached (cf Rix LJ’s judgement in Williamson’s
8
case at paragraph 193). That mew occur when belonging to his religion is made so difficult for a complainant that in consequence of the acts complained of he is in effect being coerced to change his religion, eg if adherents of a certain religion were barred from all or substantial areas of work (as in Thlimmenos v Greece). This would comprehend the second and fourth of the suggestions advanced by Ms Tahzib which we have cited, but restrictions on the lines oft/se first and third would constitute a breach of Article 9(1) only If the invasion of freedom were sufficiently substantial.
(c) That point is not generally reached when the complainant has a choice, which it is reasonable for him to exercise, whereby he is enabled to avoid the adverse consequences of the act or circumstances complained of and still maintain his own religion, ge by taking up other employment open to him.
[24]
On the facts of this case it may be contended that
the disadvantages imposed on the appellant in seeking appointment as a police
trainee because he was not a Catholic tended to make him consider abandoning
his own religion, lie was, however, free to seek and engage in other employment
and no case has been made that his failure to obtain appointment as a trainee
police officer had a very substantial effect on his career or employability. We
therefore consider that those disadvantages were not such as to involve a
breach of his Article 9 rights. It follows that section 4 6(1) of the Act is
not in our opinion incompatible with the appellant ‘s rights under Article 99)
of the Convention, and we must dismiss the appeal.”
[Parsons para23 & 24, emphasis added]
45. The instant case is directly in point with Parsons in relation to the question of whether or not article 9 is engaged at all. It is not and therefore no question of justification falls to be determined.
Article 6
46. Article 6(1) reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of Juveniles or the protection of
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the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
47. Article 6 does not afford a right to a fair hearing in respect of any grievance that a Claimant might have. It presupposes the existence of a justiciable right in law and in the absence of such a right has no application. The Claimant’s case in this matter is in reality a complaint that she has no right not to be discriminated against on the ground of religion in applying for a post as a principal. It is not properly construed as a complaint about the lack of a right to a fair hearing. The Claimant’s difficulty is a substantive one, not a procedural one.
48. As Lester, Pannick & Herberg set out at clearly:
“Article 6 does not control the content of a state‘s substantive domestic law, While the concept of a ‘right’ is autonomous because it does not depend on how the privilege or interest concerned is classified in the domestic system, it is not open to the ECtHR applying art 6(1) to create by way of interpretation a substantive right which has no legal basis in that system at all. If there is no actionable domestic claim as a matter of substantive national law, the article will not normally apply. Thus In the case of Powell and Raynor v United Kingdom the ECtHR held that art 6 did not apply when the applicants complained that because of the substantive national law (which consisted of a statutory exclusion of liability), they could not bring an action in relation to noise nuisance caused by aircraft overflight”
[“Human Rights Law and Practice”, Third Edition, para 4.6.5]
49. Lester, Pannick and Herberg go on to draw the distinction between substantive limitations (to which article 6 will not normally apply) and procedural limitations (to which it may well apply). The current case clearly involves a substantive limitation in domestic law and article 6 does not apply to it, Article 6 cannot operate in this case to bestow on the Claimant a right from which she is excluded by virtue of substantive domestic law.
50. In any event the Claimant has not been refused a fair hearing by an independent and impartial Tribunal. That is what she is currently enjoying in the context of this litigation. Even if the Interested Parties are correct and the Tribunal has no jurisdiction to entertain her claim there could be argument that she could have had recourse to the High Court on application for judicial review as in Parsons.
Article 14
51. The Claimant alleges breach of Article 14 of the European Convention On Human Rights, which said article (prohibition of discrimination) reads as follows:
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“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion political or other opinion, national or social origin, association with a national minority, property, birth or other status.
52. Article 14 is not a freestanding guarantee of equal treatment without discrimination. The prohibition is broad in that it prohibits discrimination on wide grounds, but is limited in that it only prohibits discrimination in the enjoyment of a specific right set forth elsewhere in the Convention. Article 14 is not a blanket provision against discrimination and has no application at all unless and until the facts at issue fall within the ambit of some other article. The Claimant argues that article 14 is engaged by reference to the engagement of articles 6 and or 9. As already set out the Claimant has not been prevented from enjoying any of her rights under article 6 or article 9 in the context of this case and as such article 14 is not engaged.
53. If (which is denied) article 14 is engaged or any of the Claimant’s arguments thus far succeed then the discriminatory provisions in question are objectively justified.
Justification:
54. If any issues of justification does fail to be determined the Interested Parties rely on the detailed evidence of their witnesses and the documents exhibited thereto. Turning to the three limbs of the test for justification:
55. The legislative objective is clearly set out with the approval of the Council of the European Union in the terms of article 15(2) of the directive:
“….to maintain a balance of opportunity in employment for teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities there…”
56. This is clearly sufficiently important to justify the limiting of a fundamental right It is no coincidence that the objective is set out in these terms in the Directive. There was clearly an awareness of the need to spell out in no uncertain terms the motivation and objective behind this significant departure.
57. Turning to the second limb, the exemption, being the measure designed to meet the objective, is rationally connected to that objective and is not arbitrary, unfair or based on irrational considerations. Indeed it is the only rational mechanism to secure and maintain the balance of opportunity in employment for teachers in Northern Ireland. The Claimant does not suggest any other mechanism which could secure the same objective.
58. This directly feeds into the third limb of the test - whether the exemption in question is necessary to achieve the legitimate aim. It is necessary for the following reasons.
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59. Without
the exemption Catholic schools could, on the basis of Genuine
Occupational Requirement, recruit Catholic teachers In preference to teachers
from the Protestant community. State schools could not apply a similar
requirement.
60. Protestant teachers might not be able to meet the criteria to work in Catholic schools while Catholic teachers would be able to meet the criteria for both Catholic and State schools. Catholic teachers would be able to claim the protection of the 1998 Order in respect of job applications to State Schools but Protestant teachers could find themselves unable to claim the same protection in applying to Catholic Schools. Protestant teachers would have less opportunities for employment than Catholic teachers. Catholic teachers would enjoy an advantage over Protestant teachers in the overall employment market in schools in Northern Ireland.
61. Not only would this lead to
an imbalance in the opportunities available to
teachers of the different religions in Northern Ireland but it could foster a
sense of unfairness amongst the. disadvantaged group and a belief that Catholic
teachers were securing jobs at the expense of Protestant teachers. This could
undermine good relations and the peace process and inhibit the reconciliation
of historian divisions between the major religious communities in Northern Ireland. The Claimant might well make the case that we in Northern Ireland have moved on beyond such concerns. Unfortunately recent events arguably
demonstrate that we have not moved on as much we might have hoped.
The Charter of Fundamental Rights
62. The Claimant briefly refers
to article 21(1) of the Charter of Fundamental
Rights of the European Union (2000/C364/Ol) which states as follows:
“Any discrimination based on any ground such as sex,
race, colour,
ethnic or social
origin, genetic features, language, religion or belief political or any other opinion, membership of a national minority, property,
birth, disability, age or sexual orientation shall be prohibited”
63. It is argued that the Charter “provides an aid to the interpretation of both EU and domestic law” and perhaps even forms the basis of a substantive challenge to the lawfulness of article 15 of the Directive and article 71 of the 1998 Order. The Charter adds nothing to the Claimant’s arguments.
64. Article 51 of the Charter confirms that the scope of the Charter is only that the rights contained therein should be “respected” and the principles “observed”:
“Article
51
Scope
1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union
12
law. They shall therefore respect the rights,
observe the principles
and promote the application thereof in accordance with their
respective powers.
2. This Charter does
not establish any new power or task for the
Community or the Union, or modify powers and tasks defined by the
Treaties.”
65. Article 52 (3) further clarifies:
“In so far as this Charter contains rights which
correspond to rights guaranteed by the Convention for the Protection of Human
Rights and Fundamental Freedoms, the meaning and scope of those rights shall be
the same as those laid down by the said Convention. This provision shall
not prevent Union law providing more extensive
protection.”
66. The Treaty of Lisbon which was signed in December 2007 amended article 6 of the Treaty on European Union so as to recognise the said rights, freedoms and principles set out in the Charter. At the time of signing however the UK secured a protocol to the treaty excluding the application of the Charter to the UK.
67. The Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom provides (ignoring the lengthy preamble) reads:
“Article 1
1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom. to find that the laws. regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental right, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.
Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.”
68. The Protocol has been the
subject of subsequent interpretation by the
European Court of Justice in the case of NS v Secretary of State for the
Home
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Department & Others [2012] ALL ER (BC) l0ll. Article 1( l ) of Protocol No 30 was found not to represent a general opt-out from the Charter as in essence no such opt-out was necessary. Article 1(1) simply reaffirmed the status of the Charter as already set out in article 51 of the Charter. Whether the Protocol simply reaffirms the already settled status of the Charter or is itself responsible for the fact that the Charter creates no new justiciable rights is perhaps academic to the issues before this Tribunal. The important point is that the Charter does not extend the ability of any court in the UK to find that the laws, regulations or administrative provisions of he UK are inconsistent with the fundamental rights, freedoms and principles it reaffirms:
“168. Under art 1(1) of Protocol No 30, the Charter does not extend the ability of the Court of Justice of the European Union or any court or Tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights. freedoms and principles that it reaffirms,
169. According to its wording, art 1(1) of Protocol
No 30 therefore makes clear that the Charter of
Fundamental Rights does not have the effect
of either shifting powers at the expense of the United Kingdom or Poland or
of extending the field of application of EU
law beyond the powers of the European Union as established in the Treaties. Article 1(1) of Protocol No 30 thus merely reaffirms the
normative content of art 51of the Charter of
Fundamental Rights. which seeks to prevent precisely such an extension of EU
powers or of the field of application of EU law79. Article 1(1) of the Protocol does not therefore, in
principle, call into question the validity of the Charter
of Fundamental Rights for the United Kingdom and for Poland”
[ibid paras 168 & 169]
69. The Industrial Tribunal in the case of Mc Gurnaghan & Irvine v Chief
Constable & Others (1683/1l &
1680/l1), considering NS and the Claimants’ argument that certain
domestic provisions of law ought o be disapplied in the light of inter alia
articles 30 and 41 of the Charter concluded that “the Charter does not
provide any relevant justiciable right in the United Kingdom.”
70. The Charter creates no new justiciable right that benefits the Claimant in her submissions and indeed in does not extend the ability of the Tribunal to find that the exemption is inconsistent with any right, freedom or principle the Charter reaffirms, including those set out in article 21 of the Charter.
71. This should be self-evident
in any event from the unqualified nature of article
21 which otherwise would render a vast number of legislative provisions in the UK incompatible if it did create any substantive rights.
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The Council of the European Union was not blind to the Issues when it adopted the Directive
72. All of the submissions made by the Claimant presuppose that were it not for the directive discrimination in recruitment on the grounds of religion would be unlawful. The reason the Claimant is forced to attempt such an obviously strained construction is that the Directive itself permits the exemption in question and therefore the Claimant must argue that not only domestic legislation but also the Directive must be ignored. She must therefore argue that when the primary instrument of European law which prohibits discrimination in employment is ignored there remains in law identical protection from discrimination but without the relevant exemption.
73. This begs the question why the Directive was required and adopted in respect of religious discrimination at all. It also presupposes that the Council of the European Union (the Council) had no regard to Human Rights issues and fundamental principles of European law in adopting the Directive which included the impugned exemption. This cannot be right.
74. As is clear from the preamble the Council in adopting the Directive, including the impugned exemption, had regard to:
…the Treaty establishing the European Community, and in particular Article 13 thereof
…the proposal from the Commission (1),
…the Opinion of the European Parliament (2),
…the Opinion of the Economic and Social Committee (3),
…the Opinion of the Committee of the Regions (4),
75. At the outset the first recital to the Directive acknowledged the importance of and respect for the European Convention on Human Rights:
“(1) In accordance with Article 6 of the Treaty on European Union; the European Union is founded on the principles of liberty, democracy1 respect for human rights and fundamental freedoms, and the rule of law, principles which are common to all Member States and it respects fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”
76. Various other recitals are equally instructive. Recitals 11 and 12 make it clear that discrimination based on religion or belief was not already prohibited or unlawful solely by virtue of the operation of the European Convention on Human Rights. Rather the purpose of the directive was to prohibit such discrimination and it did so within the terms of the directive (emphasis added below).
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“(11)
Discrimination based on religion
or belief
disability, age or
sexual orientation may undermine the achievement of the objectives of the EC
Treaty, in particular the attainment of a high level of employment and social
protection, raising the standard of living and the quality of 4*, economic and
social cohesion and solidarity, and the free movement of persons.
(12) To this end, any direct or indirect
discrimination based on
religion or belief disability, age or sexual orientation as regards the
areas covered by this Directive should be prohibited throughout the
Community. This prohibition of discrimination should also apply to
nationals of third countries but does not cover differences of treatment based
on nationality and is without prejudice to provisions governing the entry and
residence of third-country nationals and their access to employment and
occupation.”
77. Recital 26:
“(26) The prohibition of discrimination should be without prejudice to the maintenance or adoption of measures intended to prevent or compensate for disadvantages suffered by a group of persons of a particular religion or belief disability, age or sexual orientation, and such measures may permit organisations of persons of a particular religion or belief disability, age or sexual orientation where their main object is the promotion of the special needs of those persons,”
78. Recital 34:
“(34) The need to promote peace and reconciliation between the major communities in Northern Ireland necessitates the incorporation of particular provisions into this Directive,”
79. The Directive does not provide for strict liability with no derogation. The framework provided is general and not absolute;
“The purpose of this Directive is to lay down a general framework for combating discrimination on the pounds of religion or belief disability, age or sexual orientation as regards employment and occupation, with a view to puffing into effect in the Member States the principle of equal treatment.”
[Article 1 of the Directive]
80. The Directive was formulated and adopted having regard to the European Convention on Human Rights and all relevant principles of’ European law, It was formulated and implemented on the basis that it was necessary to prohibit inter alia discrimination on the ground of religious belief in the employment field and that such conduct would be prohibited by and within the terms of that Directive as implemented in national laws.
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81. The 1998 Order correctly implements EU law as dearly set out iii the Directive. The exemption found in article 71(l)(b) of the 1998 Order is specifically anticipated and permitted by article 15(2) of the Directive. The relevant provisions of the 1998 Order correctly transpose the relevant provisions of the Directive into national law. The exemption is clearly and lawfully maintained in accordance with both domestic and European law.
Court of Appeal consideration of the exemption:
82. Although the parties in Flynn and Debast ([2007] NICA 56 did not advance the arguments relied upon by the Claimant herein the fact remains that the Court of Appeal in Northern Ireland has considered the applicability of the exemption in question. The Court was comprised of two Lord Justices of Appeal and the Lord Chief Justice who were all well versed in issues of European law including those arising out of the European Convention on Human Rights.
83. Kerr LCJ, delivering the judgment of the court, concluded that:
“[20] While I accept that the overall purpose of the Directive was to eliminate discrimination over as wide a field as possible, the exemption provided for in Article 15.2 is clear. Recruitment to teaching posts in schools in Northern Ireland does not fall within its purview. The essential Issue in this case is a net one, therefore. It is whether this particular appointment must be classified as a recruitment. For the reasons that I have given, .1 consider that It must be,”
84. Recruitment
to teaching posts in Northern Ireland does not fall within the purview of the
Directive. Because it does not the only issue in this case is
whether the recruitment of a Principal is the recruitment of a teacher.
The Fair Employment Tribunal is a Creature of Statute and must be cautious of extending its jurisdiction
85. The statutory
nature of the tribunal was reiterated recently at length in
Gurnaghan & Irvine v Chief Constable & Others (1683/11
& 1680/11). The Tribunal, having considered the general issues relevant to
jurisdiction in the context of an argument that various provisions of domestic
law should be
disapplied (at paragraphs 6.-S) concluded:
“9. Statutory Tribunals, such as the industrial tribunal,
without any inherent, general or residual jurisdiction, must be very cautious
about entertaining arguments that they shoul4 without clear statutory
authority, extend their Jurisdiction and entertain claims which should properly
be determined elsewhere.
10. Industrial Tribunals in northern Ireland are ste up under the Industrial tribunals (Northern Ireland) Order 1996. Article 4 of that
17
Order under the heading ‘Jurisdiction of Industrial
Tribunals’
provides:-
“Industrial tribunals shall exercise the
jurisdiction conferred
on them by or by virtue of this Order or any other statutory provision.”
It therefore seems beyond any rational argument that this tribunal has
a strictly limited and statutory jurisdiction”
86. The Tribunal should not in
this matter accede to an argument which would effectively result in it
arrogating to itself the jurisdiction to hear a claim of discrimination on the
ground of religion in the context of the recruitment of a teacher which is
specifically excluded from its jurisdiction by virtue of
substantive provision of domestic law.
CONCLUSION:
87. In conclusion:
(a) For the purposes of operation of article 71(1)(b) of the Fair Employment and Treatment (NI.) Order 1998 (“the 1998 Order”) “Teacher” is properly and lawfully construed so as to include School Principals; and
(b) The exemption created by Article 71(1)(b) of the 1998 Order and Article 15(2) of the EU Framework Directive on Equal Treatment in Employment and Occupation 2000/78 (“the Directive”) is not incompatible with and does not breach articles 6, 8, 9 or 14 of the European Convention on. Human Rights. There is no prima facie breach or engagement of the said articles and if there is (which is denied) same is objectively and lawfully justified.
(c) Consequently the exemption should not be disapplied and the Tribunal does not enjoy any jurisdiction to entertain the Claimant’s claim.
Philip Mc Ateer
14th January 2013
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