Our Employment Group outlines two important upcoming appeals before the Supreme Court.

An Bord Banistíochta, Gaeilscoil Moshíológ v The Labour Court, The Department of Education and Anor [2023]

In October 2023, the Supreme Court granted the applicant school board of management (the “Board”) leave to appeal an earlier High Court decision. The Supreme Court’s determination is available here.

Background

In July 2023, the Board lost its High Court appeal against a decision of the Labour Court.  The Labour Court had held that the principal of the school had been unfairly dismissed and ordered his re-engagement to his role as principal from a date in 2017 under the Unfair Dismissals Acts 1977-2015 (the “UD Acts”).

The High Court however went further and ordered reinstatement from 30 January 2013, this being the date on which the Court believed that the principal’s administrative leave should have ended. Reinstatement, unlike re-engagement, involves full preservation of the employee’s employment rights, including back-pay of salary and pension entitlements, along with continuity of service. The events leading to the dismissal dated back to 2012, when the principal was placed on administrative leave in respect of an incident involving an inappropriate physical interaction with a child in a classroom setting.  The administrative leave was extended, and a lengthy period of suspension ensued until his dismissal in November 2015 following an investigation into enrolment figures. Our analysis of the High Court decision is available here.

Supreme Court Determination – October 2023

The Supreme Court, in granting the Board leave to appeal the High Court decision, identified three “matters of general public importance” justifying the leapfrog appeal:

1. the employment responsibilities of a school principal making enrolment returns to the Department of Education and the extent of which, inter alia, agreement or consent of a school board of management to those returns can affect the reasonableness of a decision of that board (although differently constituted) to dismiss him on account of those returns;
2. the obligations on board of management prior to making the allegations of fraud against a teacher and a principal in particular, and the consequences – for the available remedy and the costs of court proceedings – where an unfair dismissal has been found but when the fraud allegations are not proven and may be held to be unreasonably levelled in the disciplinary proceedings; and
3. the applicable principles when considering reinstatement or reengagement following a finding of unfair dismissal under the UD Acts and whether the High Court has jurisdiction to vary the remedy imposed by the Labour Court in the absence of a cross-appeal.

A consideration of the principles applicable to the remedies of reinstatement or reengagement under the UD Acts will be of greatest interest to HR practitioners and in-house counsel, in circumstances where these are risks that must be considered in all dismissal situations and the decision of the High Court was to have far-reaching implications. 

The case is listed for hearing by the Supreme Court on 11 March 2024.

Seamus Mallon v The Minister for Justice, Ireland and the Attorney General [2023]

On 24 February 2023, the Supreme Court granted the applicant, Mr Mallon leave to appeal a decision of the High Court. The Supreme Court’s determination is available here.

Background

This case concerns an appeal of a decision of the High Court of a judicial review challenge to the mandatory retirement age of 70 imposed on sheriffs pursuant to section 12(6)(b) of the Court Officers Act 1945. Mr Mallon argued that this statutory provision was incompatible with Council Directive 2000/78/EC (the “Equality Framework Directive”) transposed into Irish law by the Employment Equality Acts 1998 -2021 which established a general framework for equal treatment .

Mr Mallon turned 70 in 2022 and was obliged to retire. A formal submission was made by the Sheriff’s Association, of which Mr Mallon is a member, to the Minister of Justice to review the statutory retirement age. The application was refused on the basis that the Public Service Superannuation (Age of Retirement) Act, 2018 introduced a mandatory retirement age which is consistently applied to all public servants. The Minister justified the mandatory retirement age on objective grounds such as planning, intergenerational fairness, age balance and consistency.

The judicial review application was refused by the High Court on the basis that though the mandatory retirement age was discriminatory, the discrimination was justified on a number of legitimate objectives. Mr Mallon sought leave to appeal to the Supreme Court seeking a review of the compatibility of statutory mandatory retirement ages in light of the Equality Framework Directive.

The Supreme Court, in granting Mr Mallon leave to appeal the High Court decision, identified the following questions of general public importance:

1. is a national measure such imposing a statutory retirement age of 70 for sheriffs compatible with the Equality Framework Directive;
2. whether a compatibility test is required to assess the validity of mandatory retirement ages; and if so what factors are validly to be considered;
3. can mandatory limits be set in relation to defined groups based on general probabilities of age, health and competence, as opposed to individual characteristics on an individualised assessment; and
4. whether the decision of the Minister not to amend the statute, which forms the basis of this application, constitute a decision amenable to judicial review.

Mandatory retirement ages are topical at the moment in the context of age discrimination claims. Although this decision deals with a statutory retirement age, the Supreme Court’s compatibility analysis may provide some useful guidance to employers in managing retirement.

We will publish a detailed consideration of the Supreme Court decision in the HA O’Neil Limited v Unite the Union, Patrick James Gould, William Mangan and Damian Jones case separately.

For more information on any of the above topics please contact a member of the Employment Group.

The content of this briefing is provided for information purposes only and is not legal or other advice.