Nature of Office
General employment laws apply to teachers. However, the structure of education in Ireland has led to a unique triangular relationship between the Department of Education, schools/Board of Management and the teachers.
Teachers employed in national schools are employed by the manager on behalf of the school patron. The Boards are bodies corporate and are the employer. Many of the terms and conditions of employment are determined by the Department with the consent of the Department of Finance.
As a general rule, the state is not vicariously liable for the acts of teachers appointed by a manager of the school. There is no employment relationship between the teacher and state. This was upheld by the Supreme Court in O’Keefe v Hickey in 2008.
Teachers are not technically civil servants. However, they are treated as part of the public service for various purposes. The State is responsible for most teachers’ salaries. A State statutory pension scheme was provided under the National School Teachers Ireland Act 1879.
Teachers may be redeployed from one school to another in accordance with a redeployment procedure provided for in the Education Amendment Act 2012. The Department is required to consult prior to redeployment. It is arguable that the Boards of Management’s consent is necessary.
The numbers and qualifications of teachers must be agreed by the Department of Education. The Department inspects and monitors teaching standards in recognised schools.
Teachers at primary, post-primary and further education levels must register with the Teaching Council. Part 5 of the Teaching Council Act deals with fitness to practice.
Terms of Employment
The making of the contract with the Board of Management constitutes the contractual relationship. However, upon approval by the Department of Education and Science, the teacher becomes a member of the public service.
This contract is subject to the general rules of employment law. Many aspects of teachers’ contracts of employment are governed by the Department of Education memos and circulars.
Employment law implies a wide range of protections covering different subject matters into the contract of employment. This covers and includes legislation on unfair dismissal, minimum notice, holidays, equality and the protection of part-time workers. Also implied is a wide range of other rights dealing with such matters as data protection, health and safety and industrial relations mechanisms.
When a primary teacher enters a post in a recognised school, he or she enters a contract of service and agrees to be bound by the rules of a national school.
The basic terms of the primary teachers’ employment contracts were agreed upon in the 1870s. Written agreements for secondary teachers were not concluded until the 1940s.
Four forms of contracts were introduced in 1873. This minimum notice period remains in place and is significantly longer than the minimum notice provided by the modern employment legislation.
The Green Form 2 is still in use and has been the most commonly used despite being effectively amended by the requirements of constitutional justice relative to dismissals and the imposition of sanctions on an office holder.
Security of Tenure
In the late 19th century and earlier 20th century, the teacher had no strict tenure of office, could be dismissed on relatively short notice with few substantive protections. The Maynooth Agreement which dates from the late 19th century between teachers collectively and Catholic clerical managers, remained of relevance until very recently.
Initially, primary teachers could be dismissed by the manager without notice or call. Following recommendations by the Powis Commission in 1870, a three month period of dismissal was provided for.
The Green Form provided in principle for dismissal without reason. In addition to the right to dismiss on three months’ notice, dismissal could take place for misconduct or other good reason without notice. This position is now subject to the Unfair Dismissals Act.
The older procedures were superseded by circulars and procedures made pursuant to the Education Act 2012. They provide a procedure for appeal against suspension and dismissal.
The Unfair Dismissals Act is also applicable to teachers. See generally the sections on employment law and the Unfair Dismissals Act.
The matter has been the subject of negotiation and agreement between the INTO and clerical school management over decades. The first Maynooth Agreement 1894 provided that dismissal notice would not be served by a Catholic manager until the manager has given his Bishop, the patron notice of the intention to do so and the secured agreement.
A revised agreement, the Maynooth Agreement 1927 was incorporated into a church statute. This provided for notice of an intention to dismiss to be given to the Bishop and the opportunity for the teacher to make his defence to the Bishop. Unlike the earlier agreement, this applies to dismissals based on misconduct.
This mechanism continue to be available until 2012 when it was superseded by circulars and procedures made pursuant to the Education Act 2012.
Employees of Roman Catholic managed schools are required to have a religion certificate. This is generally given on graduation and completion of a course. It is now available to part-time and teachers entering training from abroad. The general carve-out for employment equality for religious managed schools did not apply in the circumstances.
The Employment Equality Act provided until amendment under 2018 legislation, that there was deemed not to be discrimination on the religion ground to give more favourable treatment to an employee or prospective employee on the ground of his religion where it is reasonable to do so in order to maintain the religious ethos of an institution or take actions which are reasonably necessary to prevent an employee or prospective employee from undermining that religious ethos. This exemption was upheld under the Constitution on reference by the President of the Bill to the Supreme Court.
Judicial review is not a review on the merits. It is a declaration as to legality. It usually challenges the fairness of procedures. A decision is only subject to substantive challenge if it is so unreasonable that no reasonable decision-maker could make it. The test is often expressed that it is at variance from fundamental reason and common sense.
Where the decision maker’s authority derives from a private agreement or contract it is not subject to judicial review. This applies even where the agreement arises in accordance with procedures agreed between the Minister and school. Accordingly, private law procedures in relation to dismissal and sanction have been held not to be subject to judicial review.
Where the decision maker’s authority derives from a private agreement or contract it is not subject to a judicial review. This applies even where the agreement arises in accordance with procedures agreed between the Minister and school. Accordingly, private law procedures in relation to dismissal and sanction have been held not to be subject to judicial review.
Judicial Review in Education
It appears that matters concerning teachers’ appointment and terms of employment can in principle be, challenged by way of judicial review. They can have the requisite public law element. They are based on statute and there is an extensive public element.
The functions conferred on Boards of management have a public law element. They are empowered to appoint, suspend and dismiss teachers in accordance with procedures agreed from time to time between the Minister, the patron, the recognised management operation organisation, recognised trade unions and staff associations.
Where the dispute relates to rules and procedures deriving from statute, a judicial review is available. A circular may have requisite public law elements that is not present in the case of an agreement.
A teacher employed by the Vocational Education Committee (now the Education and Training Board) was an officer of the committee. There were special statutory provisions in the Vocational Education Acts in relation to the removal of an officer. The grounds include unfitness to hold the office and refusal to carry out lawful requirements.
A special local inquiry procedure existed under the legislation. As the procedure was clearly a public law procedure, it was amenable to judicial review. The general provisions of judicial review apply. See the separate sections in that regard.
Performance and Discipline
The Education Act 2012 provides that the Board of a school may in accordance with procedures determined by the Minister following consultation with certain bodies, appoint, suspend or dismiss the principal, teachers or other staff of the school, remunerated from monies provided by the Oireachtas. There are published agreed procedures in relation to the suspension and dismissal of principals and teachers.
Disciplinary procedures have been agreed upon under the Partnership 2016 negotiation. They supersede previous codes of disciplinary practice. Each is issued under the 1998 legislation as amended. There are two separate procedures.
- Revised procedures for suspension and dismissal of teachers.
- Revised procedures for suspension and dismissal of principals.
Teacher’s qualifications and registration are dealt with by the Teaching Council under the Teaching Council Acts. There are procedures in relation to professional competence issues and procedures in relation to non-professional competence issues at work.
The first mentioned procedure provides for a verbal warning at stage I. A written warning is given at stage II. A further written warning and final written warning is given at stage III. That is an appeal to the teacher’s disciplinary appeal panel.
Notification must be given to the Teaching Council of the disciplinary action. Procedures should be exhausted before resorting to legal proceedings.
The Protection of Persons reporting Child Abuse Act 1998 provides immunity from liability for those who report child abuse under certain circumstances. There is now more general legislation on reporting child abuse and on whistleblowing generally.
Abuse covers sexual abuse, assault, ill-treatment, neglect, impairment and neglect of health, development or welfare. Welfare includes physical, moral, emotional and social welfare. A person is immunised from claims for compensation and other sanction in relation to communications that a child is being assaulted, ill-treated, neglected or sexually abused or that the child’s health, development or welfare is being avoidably impaired or neglected.
It is a condition that the person has acted reasonably and in good faith in forming the relevant opinion. This is so, even if the opinion is unfounded. The communication must be made to an appropriate person. This must be a designated officer of the HSE or a member of an Garda Síochána. An employee is protected from penalisation by way of disciplinary action by his or her employer.
Occupational Health and Safety
The health, safety and welfare legislation, obligations apply to schools. The obligations are owed to staff members and students. See the separate section on health, safety and welfare at work. This includes the requirements for safety statements, non-penalisation for complaints and the appointment of a safety representative.
The issue of workplace stress and bullying arises under health and safety legislation and common law principles. Many of the cases on the subject have involved schools and teachers. See generally the relevant sections on occupational health and safety in relation to these matters.
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