PTD126

FULL RECOMMENDATION

PTW/09/6

DETERMINATIONNO.PTD126

(r-074398-pt-09)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001

PARTIES :

HILLSIDE PARK PRESCHOOL

- AND -

ANNE BOYLE
(REPRESENTED BY INTO)

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. Appeal against Rights Commissioner's Decision r-074398-pt-09.

BACKGROUND:

2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on the 2nd September, 2009. Several Labour Court hearings took place. The following is the Labour Court's Determination:-

DETERMINATION:

This is an appeal by Anne Boyle against the Decision of a Rights Commissioner under the Protection of Employees (Part-Time Work) Act 2001 (the Act). The case is taken against the Board of Management of Hillside Park Preschool, in which Ms Boyle was employed, and the Minister for Education and Skills. Both are cited, in the alternative, as Ms Boyle’s employer for the purpose of the Act. For ease of reference in this Determination the parties are referred to as they were at first instance. Hence, Ms Boyle, who is the appellant in this case, is referred to as ‘the Claimant’. The Board of Management of Hillside Park Preschool is referred to as the ‘First Named Respondent’ and the Minister for Education and Skills is referred to as the ‘Second Named Respondent’.

By the time the appeal came on for hearing Hillside Park Preschool had closed and the Claimant’s employment had terminated.

Background

The Claimant is a teacher. She was employed part-time in Hillside Park Preschool (referred to herein as ‘the school’). This is a preschool for children from the Traveller Community. The school was under the day-to day control of the First Named Respondent. It was 98% funded by the Second Named Respondent. The Claimant was paid the salary and other allowances applicable to a primary teacher employed in a national school, adjusted pro-rata to her hours of work. She was not included in the National School Teachers’ Superannuation Scheme (referred to herein as the ‘superannuation scheme’) which provides pension benefits to primary school teachers employed in national schools. The scheme is controlled by the Second Named Respondent and is established pursuant to the Teachers Superannuation Act 1928.

The essence of the Claimant’s complaint under the Act is that by not being afforded the benefits of this scheme she was treated less favourably than a comparable full-time employee, in respect to her conditions of employment, contrary to s.9(1) of the Act. In advancing her claim the Claimant relied upon a comparator who is a full time primary teacher engaged in an Early Start Project attached to a national school. The comparator has the benefit of the superannuation scheme.

The First Named Respondent did not participate in the appeal. While the First Named Respondent was cited as a Respondent in the referral of the complaint the principal contention of the Claimant is that at all material times the Second Named Respondent was her employer for the purposes of the Act.

The Second Named Respondent denies that he was the Claimant’s employer for the purposes of the Act. By way of preliminary objection the Second Named Respondent contended that the Court has no jurisdiction under the Act to entertain the within claim in so far as it is directed against him. Without prejudice to his position in that regard the Second Named Respondent submitted that the Claimant is not engaged in like work with her nominated comparator within the meaning ofs.7of the Act in consequence of which she does not have an entitlement to the redress sought.

The claim was heard by a Rights Commissioner who held that the Second Named Respondent was not the Claimant’s employer and held that her claim was not well founded. The Rights Commissioner did not make any finding in the claim against the First Named Respondent.

At the time the claim was initiated the Claimant was employed in the First Named Respondent’s school. By the time the appeal came on for hearing the school had closed and the Claimant’s employment had terminated on grounds of redundancy.

Issues arising

There are two net issues arising in this case. Firstly there is the question of whether the Second Named Respondent was the Claimant’s employer for the purposes of the Act. Secondly there is the question of whether the Claimant’s nominated comparator is a comparable full-time employee, within the meaning of s.7 of the Act, so as to entitle her to the benefit of the superannuation scheme in accordance with s.9(1) of the Act. That question turns on whether the chosen comparator is an appropriate comparator for the purposes of the Act and whether the Claimant and the comparator are engaged in the same work or in work of equal value.

For the sake of completeness it should be noted that in the course of the hearing Counsel for the Second Named Respondent made it clear that the exclusion of the Claimant from the superannuation scheme was unrelated to her status as a part-time worker. Rather, it was because the school was not regarded as a national school Eligibility for inclusion in the scheme is confined, under the Act of 1928, to teachers employed in a national school. Counsel conceded, however, that this is not a relevant consideration having regard to the provisions of the Act.

Was the Second Named Respondent the Claimant’s Employer?
The Court first considered the preliminary objection of the Second Named Respondent to being impleaded as the employer in this case.

The material facts of the case, as admitted or as found by the Court, can be summarised as follows: -

The Claimant commenced employment at the school in 1989. She was interviewed for the position by representatives of the First Named Respondent. While she was offered employment by the First Named Respondent her appointment was subject to sanction by the Second Named Respondent. The employment was not subject to a contract in writing.

The Claimant was then a qualified secondary teacher. Between 1989 and 1992 the Claimant was paid an hourly rate, in respect of hours worked, in an amount prescribed by the Second Named Respondent. In 1992 the Claimant applied to the Second Named Respondent to have her salary adjusted to that applicable to a teacher whose status is described as ‘eligible part-time’ under a scheme agreed with teacher unions. An official of the Respondent wrote to the Claimant by letter dated 30^thSeptember 1992 acceding to her request. The Claimant was told that she would be placed on an annual salary equal to the first point of the incremental scale applicable to national teachers, together with allowances in respect to her primary degree and her teaching qualification, pro rata to her hours of work. In this letter the Claimant was further advised that as she was not a fully qualified national teacher (she was, as previously noted, a qualified secondary teacher) she would remain on the first point of the salary scale.

In 1996 the Claimant obtained a Masters Degree in Education. She applied to the Second Named Respondent for payment of an agreed allowance in respect of this qualification. By letter dated 25^thApril 1996 an official of the Second Named Respondent wrote to the Claimant informing her that she had been granted the additional allowance and that her salary would be adjusted accordingly.

In 2000, the Second Named Respondent decided that due to a shortage of qualified primary teachers qualified secondary teachers who take up substitute or temporary teaching posts in primary schools would be paid at the rate applicable to qualified primary teachers. That decision was set out in Circular 24/00 issued by the Second Named Respondent. The Claimant successfully applied to the Second Named Respondent to be included in this new arrangement. She was then placed on the second point of the teachers’ incremental salary scale and continued to progress through the incremental scale. Thereafter the Claimant’s salary was adjusted in line with agreements reached between the trade unions representing teachers and the Government as an employer. In that regard the Claimant received increases in pay arising from the report of the Public Sector Benchmarking Body, which were applicable only to workers employed in the public sector. In 2009 the Claimant’s salary was reduced pursuant to the Financial Emergency Measures in the Public Interest (No, 2) Act 2009, which applied pay reductions to public sector works other than those is certain designated employments.

The management of the school was vested in the First Named Respondent and the Claimant was under the day-to-day control of the First Named Respondent in the discharge of her duties. However, as is clear from what is set out above, the First Named Respondent exercised no control over the remuneration and other conditions of employment attaching to her employment and these matters were exclusively controlled by the Second Named Respondent.

The Second Named Respondent paid the First Named Respondent a grant equal to 98% of the costs associated with the Claimant’s employment and the First Named Respondent paid the Claimant the full salary and other allowances determined by the Second Named Respondent.

Against that factual background the Claimant contends that the Second Named Respondent is her employer. The Second Named Respondent denies that he is the Claimant’s employer for the purposes of the Act. He contends that the school is controlled and managed by the First Named Respondent and the Second Named Respondent had no involvement whatsoever in either the running of the school or in the employment of the Claimant.

The applicable law
The terms ‘employee’ and ‘employer’ are defined by s.3 of the Act as follows: -

“employee” means a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of theCivil Service Regulation Act, 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of theLocal Government Act, 1941, or of a harbour authority, health board or vocational education committee shall be deemed to be an employee employed by the authority, board or committee, as the case may be
“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer.

The tripartite relationship that exists between a teacher on the one hand, and the controlling authority of the school and the Department of Education and Skills on the other, has given rise to a significant body of litigation. InTobin v Cashall, Unreported, High Court, Kearns J 21^stMarch 2000 an issue arose as to the identity of the plaintiff’s employer in a case arising from his dismissal. The plaintiff was a vocational teacher employed in a community school. He claimed that by virtue of his status as a vocational teacher he was employed by the Minister for Education. Kearns J. (as he then was) held that the employer was the board of management of the school in which the plaintiff was employed and not the Minister.

A leading authority on this question, to which the Court was referred, is the decision of the Supreme Court inCrowley v Minister for Education[1980] IR 102. That case involved litigation arising from strike action taken by the INTO in Drimoleague National School. The Union instructed teachers in neighbouring schools not to enrol children from the school in dispute. The parents of children affected by the industrial action sought relief against the State and the Union arising from what they regarded as an interference with their childrens’ Constitutional right to primary education.

In the course of his Judgment, Kenny J. said, at pp.126-127:

The effect of that Article is that each child in the State has a right to receive a minimum education, moral, intellectual and social; that the primary and natural educator of the child is the family; and that the State guarantees to respect the inalienable right and duty of parents to provide this education. They may provide it in their homes or in private schools or in schools recognised or established by the State. However, the State is under no obligation to educate. The history of Ireland in the 19th century shows how tenaciously the people resisted the idea of State schools. The Constitution must not be interpreted without reference to our history and to the conditions and intellectual climate of 1937 when almost all schools were under the control of a manager or of trustees who were not nominees of the State. That historical experience was one of the State providing financial assistance and prescribing courses to be followed at schools;but the teachers, though paid by the State, were not employed by and could not be removed by it: this was the function of the manager of the school who was almost always a clergyman. So s.4 of Article 42 prescribes that the State should provide for free primary education. The effect of this is that the State is to provide the buildings, to pay to the teachers who are under no contractual duty to it but to the manager or trustees, to provide means of transport to the school if this is necessary to avoid hardship, and to prescribe minimum standards.[emphasis added]

That passage was more recently quoted with approval by Hardiman J. inO’Keeffe v Hickey[2009] 2 IR 302, at p.315. That case involved a claim by the plaintiff that the State was vicariously liable for personal injuries which she suffered arising from a series of sexual assaults committed against her by the first named defendant who was the principal of a school that she attended as a child. The Supreme Court (Murray CJ, Denham, Hardiman, and Fennelly JJ.,Geoghegan J dissenting) held that neither the State nor the Minister for Education and Science were liable to the plaintiff because there was no direct employment relationship between the principal and either of the State parties.

While Geoghegan J dissented from the decision of the majority on the vicarious liability of the State, he agreed with their conclusion as to the identity of the principal’s employer. At par 138 he said the following: -

In considering the issue of vicarious liability (if any) on the part of the State, it is not in dispute that a teacher in an ordinary national school of the kind that I have described including the principal of that school is in a contractual relationship with the manager of the school. In other words, the manager is the employer. Under the law of contract, it is, of course, conceptually possible in some instances for a party who enters into a contract as an agent (whether disclosed or undisclosed) to become personally liable on the contract in addition to his principal. It may not be beyond argument therefore, that the manager of an ordinary national school is contracting as agent for the patron, i.e. the Bishop and that the Bishop could himself be liable. What is certainly beyond argument is that the State is not in a contractual relationship of any kind with the teacher including the principal.

It is noteworthy, however, that at pp 347 - 348 of the report, Geoghegan J expressed broad agreement with the following proposition which he quoted from the plaintiff / appellant’s submission to the Court: -

The employment context of a national school teacher cannot be fully explained by reference to a simple contractual relationship between the national school teacher and a manager or, more recently, a Board of Management. The true relationship has been described as a complex tripartite legal relationship – or, by Gibson J. in Fox v Higgins ‘a kind of triangular pact ’. Ultimately when one applies the legal test set out above (for ascertaining whether or not there exists a relationship of vicarious liability) to this triangular pact it appears that vicarious liability should be imposed on the respondents for the acts of the first-named defendant.

These authorities indicate that there is no direct employment relationship between a teacher and the Minister for Education or the State. However, after the decision of the Rights Commissioner was given in this case, the High Court gave judgment inCatholic University School v Dooley, [2010] IEHC 496, in which questions of considerable relevance to that arising in the instant case were decided.

That case came before the High Court by way of an appeal on a point of law from a Determination of this Court given under the Protection of Employees (Part-Time Work) Act 2001. The Claimants were secondary teachers employed part-time by a private secondary school. They were paid by the school from its own resources. They claimed parity of pay and conditions with full-time teachers employed at the school whose salary was funded by the Department of Education and Science. An issue arose as to whether the Claimants could rely on the full-time Department funded teachers as comparators in advancing their claims under the Act. Both a Rights Commissioner and this Court on appeal held that the Department funded teachers were appropriate comparators, vis-�-vis the Claimants, as both groups were employed by the same employer, namely the school.

Having extensively reviewed a number of authorities, includingO’Keeffe v Hickey, the Judge found that this Court had fallen into error in accepting that the Claimants were entitled to choose a full-time Department funded teacher as a comparator for the purpose of the Act. At pp 33 - 35 of the Judgment Dunne J. said: -

There is no doubt that the school is the employer of the claimants. Bearing in mind the decision inO'Keeffe v Hickey, it appears that the school is also the employer of the chosen comparators for the purpose of issues of vicarious liability. That decision highlights the unusual tripartite relationship between the Department funded teacher, the Department and the school. However, the provisions of s. 24 of the Education Act 1998 are also of importance. S. 24 (3) makes it clear that the task of appointing teachers funded by the State falls on the board of management of a school. S. 24 (5) of the Act makes it clear that the terms and conditions of teachers funded by the State shall be determined by the Minister, with the concurrence of the Minister for Finance.

In a private school there will be a cohort of Department funded teachers and usually there will also be a cohort of privately paid teachers. The paymaster for each cohort is different. In the case ofO'Keeffe v Hickeyto which I have referred above, the unusual nature of the tri-partite agreement was described; the Board of management was found to be the employer of the teacher concerned in that case which involved the question of vicarious liability although the teacher was paid by the Department. There is no tri-partite arrangement in the case of the claimants. I have already referred to the case ofSullivan v Department of Education, a decision of the Employment Appeals Tribunal. It was observed in the course of argument in that case which involved a teacher, that the Department, as the paymaster of the teacher, was the respondent. It was argued by the Department in that case that the Department was not the employer but the “paying agent”. The tribunal in that case stated in relation to that argument:
- 'The tribunal does not accept that the Department is not the employer. The board of management or other managing authority of a school may well have a role in the day-to-day running of the school and indeed in engaging teachers, interviewing etc. The reality is that such boards of management or other managing authority in relation to state schools have little or no role when it comes to the question of remuneration of teachers, which is a most important element and aspect of the relationship between teachers and their employers. The tribunal considers that the role of the Department of education goes beyond that of “paying agent”. The Department is empowered to negotiate teachers salaries and qualification allowances and makes policy decisions in relation to the type of degree to which Ms Sullivan and other teachers have studied for in relation to the starters of such degree. As regards qualification allowances, theDepartment has a role in the whole area of maintaining appropriate pupil/teacher ratio indirectly and regulates the number of teachers in any particular school as in the scheme of redeployment. If ultimately redeployment in the case of any particular teacher cannotbe settled by agreement, the Minister is empowered to withhold the grant of a sum of money which would go towards paying that particular teacher's salary and effectively has the power to deprive a particular teacher of his or her salary.
  
  In all of those circumstances, the tribunal does not accept that the Department is simply a “paying agent”, which simply pays out the money at the request of the State school concerned. In relation to the question of the hours worked for which a teacher qualifies for his or her monthly salary, the school principal has a role in terms of certifying the hours worked. However in respect of all teachers, when it comes to the question of qualification allowances, these aspects of the teacher's salary involve no role for the school and are something which go to the teachers particular qualification and are a constant. The fact that the school principal describes him or herself as “employer” on the monthly certification form is not conclusive'.
The decision in the case of Sullivan v Department of Education highlights the different and complicated employment arrangements as between Department funded teachers and privately funded teachers. One wonders what relief, if any, could have been obtained by the claimant in the case of Sullivan v Department of Education had she pursued her case against the school concerned as opposed to the Department. It is hard to see how the Tribunal in that case could have come to any other conclusion. The recognition of qualifications and the payment of a qualification allowance was always a matter to be dealt with by the Department of Education, because it set the criteria for the payment of that allowance. That case provides one small example of the different contractual arrangements that exist between Department funded teachers and the school in which they are employed and privately funded teachers and the school in which they are employed.

The Judge then concluded her Judgment on this aspect of the case saying: -

Although the chosen comparators appear to come within the definition of comparable full-time employees as defined in the legislation, I have come to the conclusion that because of the fact that the Minister determines the terms and conditions of the Department funded teacher and the school determines the terms and conditions of the privately paid teachers, the Labour Court has fallen into error in finding that the claimants were entitled to choose a full time Department funded teacher as a comparator. The school has no hand, act or part in determining the salary and other terms and conditions of the Department funded teacher. In determining the employer for the purpose of the legislation in relation to agency workers, the legislation expressly provides that the party paying the worker is, for the purposes of the legislation, the employer. I think the school is in an analogous position. I do not accept that the chosen comparators have the same type of employment contract or relationship as the claimants with the school. To that extent, it seems to me that the Department has to be viewed as the employer of the chosen comparators for the purpose of the legislation.

Counsel for the Second Named Respondent, Mr McDonagh S.C, advanced careful and cogent arguments which sought to distinguish that case from the instant case. He urged the Court to follow the earlier authorities upon which he relied. He further submitted that the statutory definition of ‘employer’ is contained at s.3 of the Act and that it would be impermissible for the Court to give the statute an interpretation which would becontra legem.

In advancing the submission thatDooleycan be distinguished from the instant case, two differences in the factual position of the Claimant in this case from that of the Department funded teachers in the Dooley case were emphasised. Firstly, the Second Named Respondent paid 98% of the Claimant’s salary as opposed to 100% inDooley. Secondly, in this case the Second Named Respondent paid the Claimant’s salary allocation to the First Named Respondent which then paid the Claimant. In the Court’s view neither of these factual differences undermines the application of the general principle enunciated inDooley.

In so far as it may have been implicit in submissions made in the course of argument thatCatholic University School v Dooleywas wrongly decided, or that it should not be followed in light of earlier Supreme Court authorities, it is not open to this Court to consider such a proposition. While that decision may appear to be at variance with the earlier authorities it is directly in point as it deals with the same issue as that arising in this part of the instant case. It is also clear that the earlier authorities were opened to and considered by Ms Justice Dunne. It goes without saying that this Court is absolutely bound, by the Doctrine of Precedent, to follow and apply the rationale of a decision (or theratio decidendias it is technically called) of the High Court in any case in which that decision is relevant.

InMinister for Agriculture v Barry[2008] 19 ELR 245 Edwards J said that theratio decidendiin any particular case consists of the general reasons given in the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision. It seems to the Court that theratio decidendiin Dooley is discernible from the passages of the judgment quoted above. It appears to be that in a tripartite employment relationship, where the worker is engaged by and works under the direction and control of one party, and his or her terms and conditions of employment are determined solely by another party and funded by that party, the party who determines and funds the wages is to be regarded as the employer for the purposes of the Act of 2001.

As inDooley, the Second Named Respondent determined the terms and conditions of the Claimant’s employment and the First Named Respondent had no hand, act or part in determining her pay or her conditions of employment. The Claimant’s salary was set, adjusted and reduced on the directions of the Second Named Respondent without any input by the First Named Respondent. Moreover, as in the case ofSullivan v Department of Education[1998] ELR 217, which was quoted with approval by Ms Justice Dunne, the relief that the Claimant seeks, namely inclusion in the superannuation scheme, could only be obtained against the Second Named Respondent and there could be no reality in seeking to pursue that claim against the First Named Respondent.

Conclusion on this part of the case
The decision inCatholic University School v Dooleyis a decision of the High Court exercising a final appellate jurisdiction. That case concerned the interpretation of the same provisions of the Act as are in issue in the instant case. The Court believes that it is bound to follow and apply theratio decidendiof that decision in this case. For these reasons the Court must hold that the Second Named Respondent is to be regarded as the Claimant’s employer for the purpose of the within claim.

Second issue arising – Was the Claimant and her Comparator Engaged in Like Work?
Section 9(1) of the Act, upon which this claim is grounded, provides: -

Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

What constitutes ‘a comparable full-time employee’ for the purpose of s.9(1) is prescribed by ss.7(2) and 7(3) of the Act.

Section 7(2) of the Act provides: -

(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—

( a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

Section 7(3) of the Act provides as follows: -

(3) The following are the conditions mentioned in subsection (2)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

Having heard submissions and argument on which of the Respondent is to be regarded as the employer for the purposes of this claim, the Court indicated that it would proceed to hear evidence on whether the Claimant and her nominated comparator fulfil the criteria in s.7(2) and 7(3) of the Act. Counsel for the Second Named Respondent agreed to participate in that aspect of the case strictly without prejudice to its contention that it was not an appropriate respondent in the case. On that basis the matter was adjourned to allow the Claimant and the Respondent to call evidence on the questions arising in this part of the case.

The Claimant’s comparator is a primary teacher employed full-time in an early start project attached to a national school located in Darndale, Dublin. It is not disputed that the comparator’s terms and conditions of employment are determined by the Second Named Respondent and that her employment is funded by the Second Named Respondent out of monies provided by the Oireachtas. The Claimant’s terms and conditions of employment are in all material respects the same as those of the comparator, adjusted pro rata to her hours of work, save that the comparator has the benefit of the superannuation scheme. On the reasoning by which the Court has concluded that the Claimant was employed by the Second Named Respondent it follows that the comparator must likewise be regarded as employed by the Second Named Respondent for the purposes of the Act.

In the submissions made on behalf of the Claimant, reliance was placed on paragraphs (a), (b) and (c) of s.7(2) in support of her contentions that her nominated comparator is a comparable full-time employee for the purpose of her claim. On a plain reading of s.7(2) of the Act the applicability of paragraph (a) of the subsection must first be considered. If there is no comparator within the category covered by that paragraph, s.7(2)(b) must be considered. If no appropriate comparators exists within that category s. 7(2)(c) must be considered. In that regard the various categories provided for at s. 7(2) are to be regarded as mutually exclusive. (on that point see the recent decision of the High Court inUniversity College Cork v Bushin, Unreported, High Court, Kearns P, 17^thFebruary 2012, p. 8).

Accordingly the Court has first considered the applicability of s.7(2)(a) of the Act and finds that the Claimant and her comparator were both employed by the Second Named Respondent. In these circumstances the case should be considered only by reference to that paragraph of the subsection.

In addition to coming within the ambit of s.7(2)(a), the Claimant and her comparator must also fulfil one of the conditions referred to in s.7(3) of the Act. That subsection relates to whether the Claimant and the comparator are engaged in the same work, or the same work with some differences that are not significant in the context of the work as a whole, or are engaged in different work which is of equal value inter se, in relation to the criteria prescribed in that paragraph. These are essentially the same three tests as are used to asses an entitlement to equal pay under the Employment Equality Acts 1998-2011, and are referred to as establishing ‘like work’. The same expression is used in this Determination. The questions raised by s.7(3) are ones of fact and degree which the Court addressed on evidence adduced by the parties.

The evidence
The Court heard evidence from the Claimant and from her comparator concerning the details of the work which they each perform. The Court also heard evidence from Ms Emer Egan who is an assistant chief inspector of the Department of Education and Skills. The evidence can be summarised as follows: -

The Claimant
The Claimant told the Court that she commenced working at the school in 1989. She worked 15 hours per week. The school was established as part of an initiative to assist children from the Traveller Community who experience particular educational disadvantage. The school is situated in Galway and is located within a group housing scheme for members of the Traveller Community

The Claimant told the Court that she is a qualified secondary teacher and she provided the Court with details of her academic and professional qualifications.

The school catered for children of three years of age or older. They were expected to remain in the school for one year although they could remain for a further year. The purpose of the school is to facilitate the transition of the children to ordinary education. The curriculum was designed to bring the children to the level of junior infants in an ordinary school. The Claimant told the Court that it was part of her role to promote the benefits of formal education amongst the parents of the children attending the school, many of whom were themselves educationally disadvantaged and did not always appreciate the importance of education.

According to the Claimant, the enrolments in the school varied from year to year at between 9 and 11 children. This figure was disputed by the Second Named Respondent who contended that the records showed an average of 5 children attending the school. The Claimant said that children often drop-out during the year or their families may move elsewhere and this could explain some of the difference. She did not, however, accept the figures put to her on behalf of the Second Named Respondent.

The children were brought to the school at 9.30 each morning. They engage in table top activity such as treading beads etc. This is intended to develop dexterity skills. They then engage in role play or fantasy play so as to develop language. The names of the children are displayed on a board. There is a roll call and the children are expected to go to the board and point out their name. There is an emphasis on talking to the children so as to develop their language. They would also play with building blocks to develop numeracy and they would talk about what they are doing. The Claimant would read stories and get the children to know what the story is about. The general thrust of the curriculum is to provide education through play. They also engage in activity intended to develop gross motor skills. She sets goals for the children and they are ticked-off as they are achieved.

According to the Claimant, in addition to her teaching / educational duties she was responsible for the care of the children while at school. She was responsible for meeting with parents so as to promote the educational benefits of the school and she needed to develop a relationship of trust with the parents. She also had other administrative duties including preparing and developing policy statements for the school, preparing a parents handbook, purchasing materials and equipment and enrolling children. According to the Claimant this work is done by the Principal in an early start project attached to a national school. The Claimant also told the Court that she was responsible for liaising with various services organisations and the national education officer for travellers and a visiting teacher for travellers. She also liaised with neighbouring schools into which the children could be placed. The school comes under the general supervision of the HSE and she dealt with the HSE in relation to safety matters in the school. She also undertook fundraising activity.

The Claimant was assisted in her work by a childcare assistant. She was responsible for training and supervising the childcare assistant.

The Claimant confirmed that she was not provided with a curriculum. She said that she underwent in-service training and received a copy of the curriculum used on the early start programme. She then used the curriculum in her work. She confirmed that she had not undertaken in-service training for the past five years. Apart from the national officer for travellers her work was unsupervised other than by the HSE. The Claimant accepted that the national education officer for travellers retired in 2002 and was not replaced. In relation to planning, the Claimant said that she would discuss the work programme with the childcare worker and develop a plan to which she would adhere.

The Claimant also accepted that while she is a qualified teacher she is not probated.

The Comparator
The Claimant’s comparator, Ms Anita Hogan, gave evidence. Ms Hogan is a qualified primary school teacher and is probated. She works full-time in an early start project attached to a national school. This witness takes two groups of children per day. There are normally 15 enrolled in the group that attends in the morning and 7 in the afternoon, although not all attend each day.

In relation to her day-to-day teaching activity, Ms Hogan told the Court that she is assisted by a childcare worker. The children in her care must be 3 or over on 30^thof September of the year in which they are enrolled. Generally she engages the children in activity intended to develop their cognitive skills. This involves activity similar to that described by the Claimant in her evidence. The curriculum guidelines for the early start project indicate the standards that the children should achieve and she works to those standards. She uses profile sheets to monitor the child’s progress. Her work involves a lot of interaction with parents.

Ms Hogan told the Court that her work involves engaging the children in activity which is very similar to that described by the Claimant in her evidence to the Court. She said that her work is not directly inspected by the Department of Education and Skills but that it is included in the whole-school evaluation undertaken from time to time by the Department.

Ms Hogan told the Court that she is attached to the school but is assigned to the early start project. Before she was assigned to her present duties she was required to prepare a plan setting out how she proposed to undertake her work. This was drawn up around the curriculum guidelines for the early start project. She is required to prepare a teaching plan from time to time which she submits to the Principal of the school to which the project is attached and who has responsibility for the project.

The witness told the Court that the underlying rationale behind the curriculum guidelines is to develop the children and to prepare them for formal schooling. Before she commenced in her current role she read the guidelines and her work is directed at putting them into effect. She said that she is not free to decide on what she does in the course of her work; she must follow the guidelines. Her degree covered early childhood development and education. She works under the general direction of the school Principal. She is generally free to apply the curriculum as she considers appropriate so long as she keeps to the guidelines.

Ms Hogan said that she does not have flexibility in relation to the curriculum guidelines in the sense that she cannot decide on what to leave in or take out. She prepares a profile for each child which identifies their level of ability. She prepares an education plan around the profiles which is submitted to the Principal. Thereafter she reports to the Principal weekly.

Evidence of Ms Emer Egan
Ms Emer Egan gave evidence. She is Assistant Chief Inspector in the Department of Education and Skills and manages the Department’s inspectorate. The witness was a teacher for five years and has been an inspector for 30 years. She has held her current role for 11 years. Ms Egan told the Court that the Department only inspects recognised schools. The school in which the Claimant worked was not a recognised school and was not subject to inspection. In relation to the role of the visiting teacher for travellers, Ms Egan said that this was confined to visiting traveller sites and encouraging school attendance amongst the children of the families residing there. The role of this post was simply to encourage enrolment and it was in no sense akin to that of inspection. Nor had they any role in relation to the monitoring of teachers or teaching standards.

In relation to the early start programme, the Court was told that this was regarded as part of the school and that the normal regulations in relation to national schools applied to these projects. The teachers assigned to the early start programme must be fully qualified and they must be probated. The process of probating a teacher involves visiting them a number of times during their first year of teaching and preparing a report for submission to the Teachers Council. It is only if the Teachers Council is satisfied as to the teacher’s competence that he or she is regarded as probated.

According to Ms Egan the curriculum guidelines apply to the early start projects within recognised schools but not to traveller preschools. The guidelines provide a very structured approach to early childhood education. It also sets down the outcomes that must be achieved. These guidelines require the preparation of child profiles and education plans. The witness said that the Department has no way of knowing what teachers in the traveller preschools are doing.

The Court was told that while only fully qualified and probated teachers can be employed in the early start programme there is no such requirement in the case of the traveller preschools.

The witness accepted that the object which the early start programme and the traveller preschools seek to achieve is the same, namely to take children from backgrounds of disadvantage and develop them to the point were they can participate fully in normal education.

Evaluation of Both Roles
Based on the evidence, the Court has considered if the Claimant and the Comparator are engaged in like work in terms of any of the three criteria referred to in s.7(3) of the Act. It has concluded as follows: -

Section 7(3)(a)
This requires that the Claimant and the comparator be engaged in the same work, under the same or similar conditions, and each is interchangeable with the other. The Court has concluded that this criterion is not applicable. The Claimant and her comparator are not interchangeable in that the comparator is a fully probated teacher and the Claimant is not. Moreover, they work under different conditions in that the comparator is a teacher attached to a national school and the Claimant worked in a preschool outside the recognised school system.

Section 7(3)(b)
This criterion requires that the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant.

The Court is satisfied that the work performed by the Claimant is of a similar nature to that performed by the comparator. They are both involved in the early education and development of young children from disadvantaged backgrounds. This is the core work of both teachers and the methods used are the same. The Court accepts the Claimant’s evidence that she had additional duties in the running and administration of the school in which she works which have no parallel in the case of the comparator. The Claimant has fewer children in her care than the comparator and she takes only one group per day whereas the comparator takes two groups. However, this latter point arises from the fact that the Claimant works part-time and the comparator works full-time. Consequently it should not be taken into account for the purpose of this exercise.

The reporting relationship of both is different. The comparator works under the direction of a school principal whereas the Claimant was, essentially, self-supervised. The comparator is required to produce an educational plan and is subjected to a more structured regime that that which applied to the Claimant. The Court, however, accepts that the Claimant did produce a plan for her own guidance and that she also profiled the children in her care although in a less structured way. The physical conditions under which both worked is also different. The Claimant worked in a school situated in a housing scheme for travellers whereas the comparator works in a normal school setting.

On balance, the Court has come to the conclusion that this criterion has not been met.

Section 7(3)(c)
This criterion requires that the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

This criterion requires an evaluation of the various components of the duties attaching to work that can be very different in nature. In undertaking that evaluation the Court must have particular regard to the skill, physical or mental requirements, responsibilities and working conditions of the job although the language used in s.7(3)(c) indicates that these are not the only considerations.

As noted in its consideration of s.7(3)(b) the Claimant and the comparator are engaged in work that is very similar. The skills required of them is the same. The Court cannot see how it could logically be contended that the skill required to educate and develop very young children to a level at which they can benefit fully from early education is greater in the case of children coming from the settled community to that required in the case of children from the traveller community. In fairness it should be noted that the Second Named Respondent makes no such contention.

The Court can see no appreciable difference in the physical or mental requirements of both posts when looked at overall. There are, however, differences between the requirement of both posts under this heading but there are also countervailing factors. The comparator works in a more structured setting and is required to maintain a formal reporting relationship with the school principal. She is required to prepare plans and profiles and report against the targets and objectives set in the plan. The Claimant did not have such a reporting relationship. This may, in fact, result in the Claimant carrying additional responsibility. Unlike the comparator she did not have the benefit of the advice and guidance of a senior colleague in dealing with difficult situations which she must handle alone. While the Claimant worked in a less formal and structured arrangement she nonetheless had to engage in planning and profiling so as to ensure that the objectives which her job entails are fully met. In the Court’s view the absence a formal or structured reporting and inspection regime did not lessen the mental requirements of the Claimant’s job vis-�-vis her comparator. In many respects they add to those requirements.

Overall there is no material difference in the physical or mental requirements of both posts.

With regard to the responsibilities of both roles, the Claimant is responsible for fewer children that the comparator. However she has additional responsibilities in relation to the administration of the school which the comparator does not have. Moreover, the Court accepts that her responsibilities in respect to liaison with the parents in encouraging them to send their children to school are greater than in the case of the comparator.

Overall the Court accepts that the responsibilities of both the Claimant and the comparator are equal.

In relation to working conditions, this has always been taken to refer to the physical conditions under which the work is undertaken. There was no evidence tendered from which it could be concluded that the conditions under which the comparator works relative to those under which the Claimant works are such as to cause a material difference value to be ascribed to both roles.

There are no other factors attaching to either role which alters these conclusions.

Result

Having conducted its evaluation of both roles the Court has concluded that the Claimant and her comparator are engaged in work of equal value within the meaning of s.7(3)(c) of the Act.

Conclusion

On the basis of the conclusions set out herein the Court is satisfied that the Claimant’s complaint is well founded and the decision of the Rights Commissioner ought to be reversed.

Redress

Having concluded the hearings on the substantive issue before it the Court invited further submissions from the parties on the question of the appropriate redress in the event of the Court holding with the Claimant. A further hearing was convened to consider the submissions received.

The Claimant is contenting for an order directing the Second Named Respondent to enter her into the National School Teachers’ Superannuation Scheme with effect from 1992, when she commenced teaching in the school run by the First Named Respondent. There are two difficulties facing the Claimant in advancing that contention. Firstly, the Act in pursuance of which these proceedings were brought was enacted in 2001. Plainly, the Claimant could not have accrued any entitlement under the Act in respect to a period prior to its enactment. Secondly, s.16(3) of the Act provides that a complaint cannot be entertained unless it is presented within six months from the date of the contravention of the Act to which it relates. While s.16(4) allows for an extension of that time limit where reasonable cause is shown no application for an extension was made either to the Rights Commissioner or to the Court.

InMinister for Finance v CPSU and Ors[2007] 18 ELR 36, Leffoy J held that the jurisprudence that generally governs the application of limitation periods under the Statute of Limitations 1957 also applies to statutory time limits of the type provided for at s. 16(3) of the Act. As in the case of a limitation period under the Act of 1957, the effect of the statutory time-limit is to bar the Claimant from obtaining redress for contraventions of her rights under the Act which occurred more than six months prior to the date on which her claim was initiated. In these circumstances the Court has come to the view that it is limited to making an order directing the Second Named Respondent to enter the Claimant in the National Teachers Superannuation Scheme with effect from the 21st September, 2008 [date being six months from date claim was served on Rights Commissioner service].

The Court also believes that it is appropriate to make an award of compensation for the general effects of the discrimination suffered by the Claimant in addition to the aforesaid order. The Court measures the amount that it just and equitable in the circumstances at €10,000.

Determination

For the reasons set out herein the decision of the Rights Commissioner is set aside and is substituted with an order directing the Second Named Respondent to enter the Claimant in the National Teachers Superannuation Scheme with effect from the 21st September, 2008 and to pay the Claimant compensation in the amount of €10,000.

Signed on behalf of the Labour Court

Kevin Duffy
4th July, 2012______________________
JMcCChairman

NOTE

Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.