The High Court has ruled that 13 teachers cannot rely on Article 40.1 of the Constitution to maintain claims over their former part-time employment, but said it could not conclusively decide whether the successive contracts were within the employer’s statutory powers.
The judgment, delivered by Miss Justice Laffoy on 14 February 2012, answered two preliminary questions on the assumption that the facts pleaded by the teachers were true. It did not determine the underlying factual allegations or the substantive claims for financial reparation.
The teachers had pleaded that they worked like hours and performed like work as permanent whole-time teachers at Cork Regional Technical College, but were employed on annually renewable temporary part-time contracts with lower pay, incremental status and superannuation cover. They said the treatment was discriminatory and unlawful. The judgment records that they received permanent whole-time contracts in 1999, making their complaints historical.
On the constitutional question, the court held that the pleaded difference in treatment was not shown to be based on gender, race, colour, creed, political leaning or another human characteristic covered by Article 40.1 as interpreted by the Supreme Court. The court said the article may apply to employment practices in appropriate circumstances, but concluded that the teachers had not shown unequal treatment as human persons on the facts pleaded. It therefore answered that they were not entitled to rely on Article 40.1 to maintain the claims set out in their amended statement of claim.
The second question concerned section 11(4) of the Regional Technical Colleges Act 1992, which allowed appointments to support posts on a temporary, part-time or contract basis. The teachers argued that repeated annual contracts for people doing de facto whole-time work went beyond that power. The defendants argued that the section permitted such contracts.
Justice Laffoy said the section’s wording allowed temporary, part-time appointments and did not itself prevent annual renewal. But the pleaded facts did not explain why the teachers had been kept on those contracts. Without evidence about the employer’s reasons and relevant staffing circumstances, the court could not determine whether the practice was legitimate, arbitrary or otherwise outside the statutory power. It said it was not proper to conclude on the limited material that the appointments were ultra vires.
The court’s answer on that issue was limited: the pleaded facts were insufficient to decide conclusively whether the contracts were intra vires or ultra vires. It did not rule that the contracts were definitively lawful. The judgment also left open whether the teachers could obtain financial reparation if an ultra vires finding were made, noting that the State parties were not before the court on this application.