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Review of Recent Case Law: Reference from the Tribunal to CJEU

Posted in : Supplementary Case Law NI on 4 July 2013
Maxine Orr
Worthingtons Solicitors

The latest NI case law review from Worthington's solicitors features two recent Tribunal cases of note:

Lyttle and Other v Bluebird - A reference from the Tribunal to the Court of Justice of European Union (previously ECJ) on the meaning of the word “establishment” and “at least 20” in a collective redundancy scenario.

Anne Moore v Western Education & Library Board - The meaning of the word “teacher” in the FETO exemption and whether this applies to Principals of a school – the tribunal held it did not.

Valerie Lyttle, Sarah Louise Halliday, Clara Lyttle and Tanya McGerty v Bluebird UK Bidco 2 Limited

This Tribunal case considered the meaning of Article 216 of the 1996 Order in relation to the requirement to collectively consult, namely:

“Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives or any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals; ...”.

In this particular case the four Claimants worked for Bonmarche Ltd.  In January 2012 that company became insolvent and went into administration.  On 20 January 2012 there was a TUPE transfer whereby the business of Bonmarche Ltd transferred to Bluebird.  Immediately after that transfer, Bluebird began a business restructuring process.  The outcome of that process was that many stores, including the stores in which these lead Claimants were working were closed.  Because of those closures, these four Claimants among others became redundant.  Each Claimant was based at a different store. 

The Claimants’ claim before the Tribunal was whether or not they were entitled to a protective award under Article 217 of the Employment Rights (Northern Ireland) Order 1996 for failure to consult under Article 216 above.  The Tribunal decided to refer the following questions to the Court of Justice.

  1. In the context of Article 1.1(a)(ii) of the 1998 Directive, does “establishment” have the same meaning as it has in the context of Article 1.1(a)(i)?
  2. If not, can “an establishment” for the purposes of Article 1.1(a)(ii) be constituted by an organisational sub-unit of an undertaking which consists of or includes more than one local employment unit?
  3. In Article 1.1(a)(ii) of the Directive, does the phrase “at least 20” refer to the number of dismissals across all of the employer’s establishments, or does it instead refer to the number of dismissals per establishment?  (In other words, is the reference to “20” a reference to 20 in any particular establishment, or to 20 overall?)

It was the Respondent’s argument that this matter should not have been referred to the European Court of Justice and numerous arguments were argued in relation to that however the Claimants’ representative in this case was arguing that the word establishment is to be regarded as the Northern Ireland Region of the Respondent and not as the individual branches.  This decision is awaited.

One of the reasons why the panel in making the reference to the European Court is the Renfrewshire Council v The Educational Institute of Scotland [2012] UKEAT 001/12, where the President of the EAT stated “[There] seems to me to be in force in the view of the Appeal Tribunal expressed in paragraph 52 in MSF that the Act might not be compatible with the Directive, since the word in s.188 is “establishment”, in the singular, whereas in the Directive it is in the plural – “the establishments in question””.

In light of this the Northern Ireland Tribunal stated that “the current situation is that the Judges in the senior employment court within the United Kingdom have expressed the view that the 20 employee per establishment threshold may well be incompatible with the requirements of the Directive, and the UK Government is expressing a belief that the threshold is entirely in line with the Directive.  Against that background, it seems to us that the case for seeking an authoritative ruling, from the Court of Justice, is overwhelming”.

Anne Moore v Western Education & Library Board and individual Members of the Board of Governors of Castlederg High School

The Claimant worked at Castlederg High School for approximately 34 years and is Roman Catholic.  Castlederg High School is a non-denominational controlled school.  She became Vice-Principal in or around 2000.  An additional Vice-Principal was appointed in or around 2005.  The Claimant was Acting Principal during the substantive Principal’s illness from 24 August 2010 for approximately 6 ½ months.  On the retirement of the Principal in or around June 2011 the post of Principal was advertised openly.  No religious restrictions were placed on that post in the job advertisement nor in the job specification and no religious restrictions on that post were conveyed to the Claimant or to any other applicant.

The Claimant was interviewed for the post of Principal and was not appointed.  The other Vice-Principal was interviewed and was appointed.  The other Vice-Principal who was appointed to the post is of a different religion to the Claimant.  The issues before the Tribunal was whether the Fair Employment Tribunal has jurisdiction to hear the Claimant’s claim of religious discrimination in connection with her non-selection for the post of School Principal of Castlederg High School or whether jurisdiction is excluded by operation of Article 71(1)(b) of the Fair Employment and Treatment (Northern Ireland) Order 1998, in that “Teacher” can and should lawfully be construed to mean for instant purposes “Principal”.

If “Teacher” can and should lawfully be construed to include a “Principal” whether the exemption from protection against religious belief/political opinion discrimination created by Article 71(1)(b) of the 1998 Order and Article 15(2) of the EU Framework Directive on Equal Treatment in Employment and Occupation 2000/78 is contrary to Articles 6, 8, 9 and 14 of the European Convention on Human Rights.

It was accepted that the current or recent Principals of Castlederg High School have carried out teaching duties.  It is accepted that the current or recent Principals of Castlederg High School have not been and are not currently timetabled to carry out teaching duties at this School.  However the parties also accept that the Principal, could, in theory, and in accordance with standard conditions which are applicable to all schools, ranging from two teacher rural primary schools to large secondary schools, have undertaken teaching duties.

The claim raised the important issue about the jurisdiction of the Fair Employment Tribunal and the application of the 1998 Order.  It was the Respondents’ position that the Tribunal did not have jurisdiction as the Fair Employment and Treatment Order exemption to Teachers included Principals and the Tribunal in this case looked at not merely the words of the legislation but the intent of the legislator.  The Tribunal stated that the relevant Article of the Order did not seek to directly qualify or to explain the word “Teacher” or to specifically attract a definition or usage which appears in other primary or subordinate legislation.  The Tribunal then stated that it had to interpret the word “Teacher” purposively or teleologically in circumstances where there are more than one possible and competing interpretations of that word and where it is not statutorily defined.  The Tribunal must seek to interpret the Fair Employment and Treatment Order in a way that is consistent with the purpose of the 1998 Order, ie to provide a remedy for the “mischief” of discrimination on the grounds of religious belief and/or political opinion.

The Tribunal stated that it was clear that the exemption in Article 71(1)(b) also applies to the wide field of discrimination on the grounds of political opinion.  The Tribunal stated “That encompasses not just orange/green dichotomies but also left/right divisions – see NIPSA v McKay [1995] IRLR 146.

The Tribunal’s decision was that this was a recruitment exercise and stated that there are two alternative meanings to the word “Teacher”.  It stated that “An exemption to the protection afforded by law against discrimination on the ground of religious belief, or indeed political opinion, must be construed strictly.  Protection against discrimination on those grounds can only classed as a fundamental freedom and it can only be presumed that any legislative provision which seeks to, if not to encourage that evil, to remove the protection against it, must be construed strictly”.  It stated that “It would have obviously been open to the draftsman to have referred to identified legislation and to have attracted a specified definition within that legislation.  He chose not to do so.  It can therefore only be presumed that the natural approach to interpretation of “Teacher” was to be one of strict construction.

The Tribunal stated that “the views of the Roman Catholic church and the views of the Protestant churches do not impinge on what amounts to a question of statutory interpretation.  If the Assembly wishes to address this issue and either to repeal the provision, to re-enact and re-word the provision, or to consider the matter further, that is entirely a matter for them.  However, part of the function of this Tribunal is to interpret legislation as it stands.  If that legislation is to be changed that is a matter which falls to others.  However that would require some positive action on the part of the Assembly and of the Executive”.

“In determining what is the appropriate and strict construction of Article 7(1)(b), the actual implications of this exemption in real life must be considered.  The provision as currently drafted allows not only a Board of Governors to refuse to employ a person on the basis of his or her religion in the sense of he tired old “orange and green” divisions within this society, it also permits several surprising results.  For example, a Jewish mathematics teacher could be refused employment simply on the basis of his Jewish faith.  A Muslim geography teacher could be refused employment simply on the basis of this faith.  A Protestant teacher could be refused employment in a controlled school simply because his girlfriend was a Catholic.  A Catholic could be refused employment in a Catholic school simply because he had married a Protestant or because one of his children was being brought up a Protestant.  A person of secular beliefs of a lapsed member of the Roman Catholic or of the Protestant churches could be refused employment on that basis.  The scope of this exemption, which exempts the entire Order from the recruitment of teachers, has an even more surprising effect.  It would allow discrimination on the grounds of left wing, or right wing politics, on the grounds of green politics or on the ground of any political opinion  such as an opinion on the selection process at age 11.  The scope of the provision following the decision in NIPSA v McKay would have been apparently to all concerned.  There has been no attempt to modify the exemption or to focus it more precisely on the stated aim at any time, but particularly on the introduction of the Framework Directive, when a clear opportunity presented itself”.

The unanimous decision of the Tribunal therefore is, applying the ordinary domestic rules of statutory interpretation and without feeling the need to go any further and to engage the European Convention, that the ordinary meaning to be attached to “Teacher” where it appears in the 1998 Order is that of frontline or classroom teacher.  On that basis, the exemption in Article 71(1)(b), strictly construed as it should be, does not apply to the circumstances of the present case and the Tribunal has jurisdiction.  It is an exemption which:

(i)            attempts to oust a Tribunal’s jurisdiction;

(ii)           attempts to encroach on a fundamental freedom; and

(iii)          presents an obvious injustice.

The Tribunal considered the relevance of the Human Rights Act 1998 or the European Convention Human Rights to the statutory exemption in the 1998 Order.  The Tribunal held that Article 9 (Freedom of Thought, Conscious and Religion) and Article 14 (Prohibition of Discrimination) were engaged in this case because there was a serious and substantial interference with the Claimant’s rights to peruse her career and employability.  It is difficult to conceive of a more serious or a more substantial interference with a career.

The Tribunal considered the justification put forward for the exemption firstly to maintain a balance of opportunity for employment between Protestant teachers and Roman Catholic teachers and secondly to further the reconciliation of historical divisions between Protestants and Roman Catholics.

It was common case that the Respondents in this case did not openly seek the benefit of the exemption and that they did not specify in the job specification or in the advertisement that the post was only open to Protestants.  Indeed the Claimant was interviewed for the post.  Furthermore, it seems common sense that the controlled schools do not openly avail of this exemption in advertising the recruitment of posts.  Similarly, the integrated sector which is obligated to keep an appropriate balance in mind does not avail itself of this exemption and does not put into practice.  There is therefore a dearth of actual evidence to the effect that this exemption assists in maintaining a balance of opportunity in employment between Protestant and Roman Catholic teachers.  Equally, there is no evidence that this part of the justification relates to public safety.  There is no evidence that public safety could be harmed in any respect by prohibiting discrimination in this field in the same way as discrimination is prohibited in other fields.  There is no evidence that the exemption assists in the protection of public order, health or morals.  The morality, peace or health in staffrooms or in schools is unlikely, on the evidence before us, to break down or be adversely affected by the removal of this exemption.  There is no evidence before us that the exemption protects the rights and freedoms of others in the context of the Convention.  If the exemption is not apparently or openly relied on and is not put front and centre in the job specifications, it is difficult to see how removal of that exemption would impact on the rights or freedoms of anyone.

The Tribunal decided that this matter should proceed to a Case Management for the purposes of a substantive hearing.

 

This article is correct at 06/08/2015
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Maxine Orr
Worthingtons Solicitors

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