Two recent High Court cases have highlighted the importance of a school engaging in a fair, reasonable and proportionate disciplinary process even though the High Court came to two very different conclusions.
The Ruffley case – facts
This case centred around disciplining an SNA. The SNA had locked the door to the sensory room while an individual pupil was in it and the next day was informed by the Principal that a disciplinary process was being initiated in relation to the locked door.
Subsequently, a process of training and review in relation to the individual pupil was agreed, whereby the SNA would complete a form detailing the activities the child achieved in the sensory room. A further issue arose when the SNA incorrectly filled out one section of the form and the Principal did not allow this to be changed. The Principal characterised this error as a ‘falsification’ and additionally did not find that any improvement had taken place during the review process.
In light of this, the Principal revived the disciplinary process and brought the matter to the Board of Management (the “BoM”).
The BoM decided that disciplinary sanction was required and imposed a Part 4 Final Warning. The SNA attempted to appeal the BoM’s decision without success.
Ruffley – decision
The Court accepted that it was common practice among SNAs to lock the door, that the SNA had never been instructed that she should not lock it nor was it included in the school’s Health and Safety Statement.
The Court found that the disciplinary process was “grossly unfair to the plaintiff and utterly denied her the benefit of her constitutional right to natural justice and fair procedures”. In addition, the Court found the alleged disciplinary issues of failure to improve and the ‘falsification’ of the review forms to be irrational and without any real basis. In light of the fact that locking the door was a common practice which would have become apparent on an investigation, taking disciplinary action against the SNA alone was “entirely unfair”.
The High Court was also concerned at the repeated failure of the BoM to properly consider the appeal of the SNA. Further, the appeal was overseen by the BoM who had made the original decision, which was a failure of fair procedures and natural justice.
The Court held that the treatment of the SNA was persistent, inappropriate behaviour which wholly undermined her dignity at work which met the definition of workplace bullying.
The Court awarded the SNA €255,276, including €115,000 in general damages. This is a significantly higher award than in other cases of psychiatric injury resulting from stress and bullying at work.
The McEneaney case – facts
In McEneaney, the teacher challenged the validity of the decision of the Education & Training Board (“ETB”) to transfer her to a different school. She also challenged the decision to place her on administrative leave and argued that there was a legitimate expectation that the procedures set out in Circular 59/2009 (now replaced with Circular 71/2014) [the “Circular”] would be followed in addressing complaints about her competence.
Five complaints had been made against the teacher by parents and pupils. She was supplied with a copy of the Circular which envisages firstly an ‘informal’ mechanism for dealing with complaints, followed by a ‘formal’ process if this is unsuccessful.
At an informal meeting the teacher’s trade union representative, suggested that she engage in “team teaching” (not an option envisaged by the Circular). The teacher did not accept this proposal, indicated she was suicidal and was subsequently certified unfit for work by her own doctors. She was also deemed medically unfit by the ETB’s Occupational Health Providers (Medmark).
The teacher then sought a transfer on the advice of her trade union. She was certified as fit to return to work with supports by Medmark. However, the teacher then withdrew her request for a transfer. It was then indicated to the teacher that she could either return to the school and face an investigation into the complaints or transfer to the other school.
Subsequently, it was indicated to her that the option of remaining at the school was no longer available to her and she was informed by email of the decision to transfer her with due regard to the employer’s duty of care and in the teacher’s best interest. It was also indicated that if the teacher insisted on returning to the school that she would be placed on administrative leave of absence and this is what occurred.
McEneaney – decision
The Court found that generally where a circular lays down the manner in which a public employer will act in particular circumstances, that circular will apply. Here, a legitimate expectation that it would apply was created at the outset by handing the teacher a copy of the Circular.
However, on the facts the Court found that the Circular was not applied entirely as a result of the teacher’s “own conduct, decisions and changes of mind”.
Furthermore, the Court noted that the Circular is only to be applied in appropriate circumstances and that, in this case, the ETB had genuine concerns about the mental health of the teacher, its impact on the school environment and her competence. The Court viewed the provisions of the Circular to be “singularly inappropriate to address the particular facts of the case”.
The Court found that there was no penalty in the decision to transfer the teacher having regard to the fact that it was a solution proposed by herself and that this was a legitimate action that could be taken under the teacher’s terms and conditions of employment documentation.
The Court also found that while the Circular did not apply on the facts to the decision to place the teacher on administrative leave with pay, the Court found it was clear from the general principles of the Circular that doing so pending an investigation was permissible and that the circumstances “warrant, and indeed mandate, such a decision”.
The Court considered whether this was a punitive act, attracting the rules of natural justice and referred to case law which had stated that “where suspension constitutes a disciplinary sanction, the person affected should be afforded natural justice and fair procedures … However, where a person is suspended so that an inquiry can be undertaken … the rules of justice may not apply”. In light of the concerns of parents and pupils, the Court considered the action was merely done “by way of good administration”. The Court did stress that any investigation undertaken will have to afford fair procedures and conform to the principles of natural and constitutional justice.
These contrasting cases perhaps seem irreconcilable at first glance. However, it is clear from both decisions that natural justice and fair procedures must be applied in any situation where a school decides to use disciplinary procedures.
In Ruffley, there was a complete failure of fair procedures. No real investigation was undertaken, the SNA was given no opportunity to make her case to the decision maker and she had no true opportunity to appeal.
On the other hand in McEneaney, the ETB attempted to apply the provisions of the Circular but did not do so only because they were inappropriate to deal with the issues at hand and because of the teacher’s own actions. In addition, given the genuine concerns about the teacher’s mental health and concerns of pupils and parents, the provisions of the Circular were inadequate. Essentially the Court seemed to take the view that the actions taken were not disciplinary actions. However, the Court made it clear that in cases of the true disciplinary action, natural justice and fair procedures must apply. Schools are advised that great caution should be exercised in terms of what can be extrapolated from this decision as the view could be taken that this case was very much decided on its own facts.
In this regard, it is important for a school to be aware that:
- It should ensure that the correct procedures are used.
- An employee should be given the opportunity to defend him/herself against any allegations and these representations should be properly considered in accordance with the procedures.
- If suspending an employee pending an investigation, it should be made clear that this is not a disciplinary action and the employee should be fully paid. Specific advice should be obtained as to the appropriateness of placing an employee on administrative leave as this will very much depend on the particular facts.
- Any appeal of a disciplinary sanction should be heard by persons not involved in the initial disciplinary action.
- In certain situations disciplinary procedures may not be the appropriate first step, for example, in cases where mental health is a concern.
- It is important that any action taken is a legitimate action to take under the contract of employment, procedures, policies, etc.